Kim Davis, Marriage Licenses, etc. (split from News)

[Oniya]

Anyone want to set up a popcorn stand?

[Mithlomwen]

I'm curious as to what her response (if any) will be. 

[Jag]

Apparently Westboro Baptist Church is planning on picketing outside of the Rowan county court house tomorrow.

*facepalm*

Hubby said he wants to dress as Deadpool and go stand with the Westboro people with a sign that says "Bring me chimichangas".

[Oniya]

*facepalm*

Hubby said he wants to dress as Deadpool and go stand with the Westboro people with a sign that says "Bring me chimichangas".

I want pics. 

[Jag]

I may not live far from Rowan county, but I am not driving my happy ass over there on my day off to stand around with a bunch of nutjobs.

If hubby wants to go and terrorize them, he goes alone.

[Mithlomwen]

I was getting ready to type, "Pics or it didn't happen!" 

I'm still kind of in shock.  I'm half expecting hell to freeze over.  I actually agree with something the members of WBC are saying (with regard to Kim and her obeying the oath of office).   

[Cycle]

I want to know if Huckabee is going to be there.  And if so, which side he'll be on. 

[Oniya]

I may not live far from Rowan county, but I am not driving my happy ass over there on my day off to stand around with a bunch of nutjobs.

If hubby wants to go and terrorize them, he goes alone.

I'm sure he can get a random stranger to take a pic while they're getting their marriage license signed.  Or maybe a news crew.    (And yeah, I was mostly kidding.  It would be funny as hell, so I may steal the idea if they ever head up this way for any reason.)

[Cycle]

Huckabee gets sued for his use of Eye of the Tiger.  He does not defend himself by stating that he had gotten permission to use the song or seek an early motion to dismiss (which is what one would do if the complaint was wholly legally defective).  Instead, he claims the Davis rally was a religious event, not a campaign event. 

Jeez man, just pay the copyright holder like you should have in the first place...

[consortium11]

He does not defend himself by stating that he had gotten permission to use the song

You may want to read the document again as he does exactly that; in the response to point 10 of the complaint (paraphrasing; it was an unauthorized public performance of the copyrighted work and thus infringed the copyright) Huckabee's side respond by denying it.

The reason they don't go into detail is because they don't have to. Defences are split into two parts, affirmative and negating defences, with a negating defence being that something the plaintiff's has alleged is not true while an affirmative defence being that even if what the plaintiff says is true there is a further defence that can be raised. At this stage of a law suit the only details of a negating defence a side has to provide are that they'll be raising a negative defence at all. In contrast affirmative defences (as they raise new points rather than countering existing ones) have to be raised earlier; timely assertion of affirmative defences is a pretty big deal which often drags cases on and on. Affirmitive defences also generally reverse the burden of proof; as they're the defence asserting something it falls on them to prove it rather than the other side having to disprove it.

What Huckabee's side are saying is that their use of Eye of the Tiger wasn't unauthorised (i.e. he had permission to use the song) but, even if the court disagrees, there are other defences that can be raised; in this case they say they will raise four; fair use, de minimis, religious assembly and no commercial advantage.

To give an example in a different context if someone was prosecuted for murder they could raise that the requirements for murder had not been fulfilled (the negating defence), for example that there was no malice aforethought. They could also raise the affirmative defence of say self-defence; i.e. even if the court finds that the requirements for murder have been fulfilled there is still a defence that they rely on.

As I've said before I imagine this case will end up getting settled (Huckabee's side apparently already made an offer to pay some money and make an apology) because the costs of defending the suit will almost certainly dwarf a settlement fee, but that doesn't change it from being a pretty dodgy cash grab that in a different context would be considered a SLAPP suit.

[Cycle]

You may want to read the document again as he does exactly that; in the response to point 10 of the complaint (paraphrasing; it was an unauthorized public performance of the copyrighted work and thus infringed the copyright) Huckabee's side respond by denying it.

The reason they don't go into detail is because they don't have to.

No, all the answer does is deny the copyright violation.  Any good litigator would have done so, since admitting the truth of this allegation means Huckabee loses immediately.

Look at the factual allegations made on page 7.  If Huckabee had a license, he would have alleged it there.  There is no reason not to, since it means he wins automatically.  Indeed, if he had such a license, his lawyer would have responded with a 12B6 motion instead of an answer.  You only answer if you have no viable legal defense that can be mounted at the outset.

It is obvious Huckabee does not have a license.  You may feel the lawsuit has no merit but attorneys from major U.S. IP law firms think otherwise:  Dykema, Proskauer.

[consortium11]

No, all the answer does is deny the copyright violation.  Any good litigator would have done so, since admitting the truth of this allegation means Huckabee loses immediately.

No, it doesn't. If Huckabee had an iron clad affirmative defence... say fair use... then he could admit the copyright violation in full and still win the case, because a successful affirmative defence trumps the violation. If he was simply relying on the affirmative defences then he wouldn't deny the copyright violation; he'd say there was one but that it was legally justified under fair use, de minimis, religious assembly and/or no commercial advantage. That's how affirmative defences work; they only come into play once the court is satisfied a violation has taken place to begin with.

A successful fair use defence works on the basis that there was a copyright violation but that it was fair use in the same way that a claim of self-defence against an assault claim works on the basis that there was an assault but that it was legally allowed because of self-defence; while all the elements of the original crime may have been satisfied a successful self-defence argument defeats them. It's the difference between affirmative and negating defences (which is why I set out the position on them); negating defences work by establishing that no crime or violation took place because the requirements for it weren't satisfied, affirmative defences work by stating that while the requirements for the crime or violation have been satisfied there is a further matter that legally protects the defendant/respondent.

If Huckabee's side weren't disputing that there was a copyright violation to begin with then they'd have accepted it in that section and simply moved straight on to their affirmative defences. They didn't; they dispute there was a copyright violation at all and only afterwards argue that if there was they have additional defences to rely on.

Look at the factual allegations made on page 7.  If Huckabee had a license, he would have alleged it there. There is no reason not to, since it means he wins automatically.

Those are setting out the facts they base their affirmative defences on. Having a blanket ASCAP liscence isn't part of the affirmative defences, it's part of the negating ones as it attacks whether there was unauthorized public performance to begin with. Sticking it in that section would at best get a slight rebuke from the court and at worst lead to the court demanding they refile their defence entirely (or even striking it out).

Indeed, if he had such a license, his lawyer would have responded with a 12B6 motion instead of an answer.  You only answer if you have no viable legal defense that can be mounted at the outset.

I have no idea where you're getting the 12B6 thing from. A 12B6 relates to a plaintiff failing to state a claim upon which relief can be granted and that simply isn't the case here. In practical terms 12B6's are very rarely granted if the plaintiff has put even a smidgen of effort into their pleading (basically included any facts at all rather than just restate the law) and even in technical terms it wouldn't apply; Rude Music have clearly stated a factual basis for the claim and it's a claim upon which relief can be granted. 12B6's aren't used to settle factual arguments (such as whether there was a license or not), they're used when the plaintiff hasn't presented enough of a case to begin with. Moreover, even if there is a license there are still claims that Rude Music could make which I mentioned earlier in the thread (false endorsement under the Lanham Act for example). Now, as I also set out earlier I think those claims range between the weak and the laughable but they are claims upon which relief can be granted.

It is obvious Huckabee does not have a license.

Why is it obvious? If Huckabee's campaign (the people being sued here) didn't have an ASCAP license then every song he played at every event would also be liable for legal action and ASCAP themselves would probably have got involved at the blatant breach of their rights. Has any of that happened? Has anyone else sued Huckabee this election cycle over his unauthorised use of their songs at his events? Hell, have any of the other groups who had their music played at the same rally taken legal action?

You may feel the lawsuit has no merit but attorneys from major U.S. IP law firms think otherwise:  Dykema, Proskauer.

Both of these (and the second one just recounts the facts and gives some context rather than offering legal analysis) base any judgement on the fact that Huckabee didn't have a license from ASCAP. If he doesn't have a license then I likely agree with them; I don't think a fair use claim is likely justified, too much of the song was used for de minimis to apply (and the courts have tightened up on what that protects over recent years), despite the religious imagery and references I don't see how the rally can be seen as a religious assembly and while the no commercial advantage side has slightly stronger legs it still strikes me as having a couple of key weaknesses.

But at this point I'm not willing to accept that Huckabee's campaign didn't have a license and I've seen absolutely no evidence to suggest they didn't (remembering that it falls upon the plaintiff to prove that part). And if they did have a license then their case is far stronger than Rude Music's.

[Cycle]

It looks like you're pulling your affirmative defense narrative from Wikipedia.  Litigators here don't call them "negating defenses."  They're normally called failing/failure to prove an element of the cause of action.

Wikipedia is also wrong on 12B6 motions.  Extrinsic evidence can be used on a 12B6 motion if it is an integral document.  So Declaration of X, Exhibit A, copy of Huckabee's license to use Eye of the Tiger.  Done.  Huckabee wins.

Also, FRCP 8 requires a license (implied is likely the best Huckabee could do since he hasn't submitted an actual license) to be pled in the answer.  It's not there.  That is telling.

If Huckabee's campaign (the people being sued here) didn't have an ASCAP license then every song he played at every event would also be liable for legal action and ASCAP themselves would probably have got involved at the blatant breach of their rights. Has any of that happened? Has anyone else sued Huckabee this election cycle over his unauthorised use of their songs at his events? Hell, have any of the other groups who had their music played at the same rally taken legal action?

The above is a logical fallacy that deserves no further response.

Defending Huckabee's case by hiding the license is suicide.  He'd have to offer it up in the initial disclosures anyway.  And again, there is NO advantage to be gained by hiding it.  Disclosing it early allows him to win the case early and stop paying attorney's fees.  Hiding it means the lawsuit will drag out.  Defending the suit by hiding the license/failing to disclose the license is malpractice.  No good lawyer would do it.  So the only reasonable conclusion is that Huckabee has no license.  That is why he's resorting to fair use and religious assembly.

[Cassandra LeMay]

Maybe one of you can explain something to me that I don't quite understand in this case.

In the Answer, Huckabee for President flat out denies the allegations of #9 of the Complaint ("Defendant denies each and every averment of the first sentence of paragraph 9 of the Complaint.") That first sentence mentioned would be:

During the campaign for the Republican presidential nomination, Huckabee for President knowingly caused a recording of “Eye of the Tiger” to be publicly performed at a campaign appearance by Mr. Huckabee.

In the Affirmative Defense (at 3.) it's further stated that the whole event was not a Huckabee for President campaign event. ("The assembly in support of Mrs. Davis was not organized, advertised, or promoted as a Huckabee for President campaign event.")

The way I, as a layman, read this is that they are denying that they were responsible for any performance of the work. Is that how everyone else also reads it? Because I am somewhat surprised that they are not emphasizing this point more.

[Cycle]

Sure.  Basically, when Rude sued Huckabee, Huckabee had two ways to respond:  (1) he can challenge the complaint, or (2) he can answer and assert defenses. 

The first option usually uses a 12B6 motion.  It has the advantage of being able to dispose of a case very quickly.  In cases involving an integral document (such as a license), Huckabee can use a 12B6 motion to present that document to the court even if Rude did not attached it to the complaint.

The second option (answering) means litigation proceeds its normal (expensive) course towards trial.  In Federal Court, this also means the parties will exchange initial disclosures (i.e., the facts, documents, and witnesses they have relevant to the case).  You can't hide key facts from the initial disclosure.  If you do, you basically lose those points.  So if Huckabee had a license, he will have to disclose it then.

Huckabee did not file a 12B6 motion.  He answered.  In his answer, he denies the allegation that he violated Rude's copyright, and then asserted four defenses:  (1) fair use, (2) de minimis violation, (3) religious assembly, and (4) no commercial advantage.  (Denying an allegation isn't evidence--i.e., it can't be used by Huckabee to prove anything.  It can be used against him, however, as an admission which is why he needs to deny the material allegations.)

Basically I see what Huckabee is saying as:  yes, Eye of the Tiger was played, but his use of the song wasn't a big deal and even if it was, he used it at a religious event rather than a campaign event. 

To me, Huckabee's posture shows he didn't have a license to use Eye of the Tiger since there is no good reason for him to not have presented said license right off (on a 12B6) or assert it as a fifth affirmative defense.  Consortium clearly disagrees and therein lies our difference.

Huckabee is trying to say he's not responsible and not liable.  But the religious assembly defense is more focused on whether he played Eye of the Tiger at a campaign event or a religious gathering.  If the latter, then he may be able to escape liability. 

[consortium11]

As it seems pretty clear we're not going to agree on this it strikes me as a bit silly to go into too much depth, so I'll answer your points in the simplest way I can.

We know exactly what happens when someone defends a lawsuit like this in the way you suggest. When Rude Music sued Newt Gingrich in almost identical circumstances his side came out firing. They sent out a 12B6 at the outset on the basis of possessing a valid license... it was denied by the court (as the vast, vast majority of 12B6's are), as was the follow up attempt to convert the 12B6 into a motion for summary judgement (as can happen when evidence is attached). He raised the point again in his affirmative defences, both by reasserting that there was no claim upon which relief could be granted and on the basis of having a valid license... both (along with a number of his other defences) were struck out by the court on the basis that they weren't affirmative defences and it was thus inappropriate to include them there. And that was also in Illinois, so there's no question of different jurisdictions handling similar cases in a different manner.

We've seen this play out before and we've seen the steps you suggest he should have taken if he possessed a valid license do nothing but rack up additional fees and annoy the judges; never a good thing to do at the start of a case.

The way I, as a layman, read this is that they are denying that they were responsible for any performance of the work. Is that how everyone else also reads it? Because I am somewhat surprised that they are not emphasizing this point more.

The technical point first; as it's a negating defence at this point they don't have to emphasise it, they merely have to raise it and make it clear they intend to use it later. There's tactical reasons for not giving more details then you need to right at the start; while the court of public opinion does matter the actual court matters more and you don't want to let the other side know the exact details of your position straight away and thus be able to tailor their own case to counter it. Law suits often start with the original claim and response both being relatively vague and then getting more and more detailed as each side amends and re-files their position, which means by the time a case actually reaches court (if it ever does... most get settled and I expect this one to go the same way) there generally aren't any surprises left on either side or details still to be revealed, with each side knowing exactly what will be argued.

In the more general sense, it's an interesting legal point and perhaps the most interesting legal one of this case; all the other details are basically fixed legally by now. Rude Music aren't suing Huckabee personally, they're suing Huckabee for President, which means Huckabee for President has to have been behind the copyright violation in some way for them to succeed. Did Huckabee for President organize the rally for Davis? Campaign finance rules on recording expenditure are fairly tight so it should be easy to check that... but even then it isn't quite so simple. On Huckabee's website (which also doubled as his official campaign website) he had a "Free Kim Davis" page which at one point stated "I'm holding an "#ImWithKim Liberty Rally" on Tuesday, September 8th at the Carter County Detention Center in Grayson, Kentucky at 3:00 PM ET (local time)" (archive here). That would swing it towards being a Huckabee for President event, even if it wasn't recorded as officially being one (at the start of the rally the preacher thanks a number of Churches for organizing it)... but then Huckabee's side would say that was him speaking in his personal capacity rather than for the campaign and point to the fact the event wasn't branded as a rally for Huckabee or something similar. Rude Music would almost certainly counter by saying that if a Presidential candidate takes part in a high profile event then it doesn't matter if there aren't any posters or branding there, the effect is largely the same. They'd likely also point out that Huckabee's presidential run was referenced a number of times by speakers on the stage and while his own speech only made one direct reference to his presidential ambitions it was largely focused around what his vision for the country would be... very much the stuff of Presidential campaign events.

So who is responsible for an event which isn't officially organized by a Presidential candidate but at which they have a high profile role, advertise it, take a lot of credit for and have their Presidential ambitions referenced a number of times?

Even if there isn't a slam-dunk direct connection which proves Huckabee for President organized the rally, I suspect the courts will still see it as a campaign event they were the organizers of; to do otherwise would ignore too much context. But it's an interesting little debate that often gets underplayed when such cases come up; while it was never tested in court because the case settled, in the Newt Gingrich action mentioned above one of Gingrich's (many) defences was that the proper party for the case to be brought against was actually the venues he was speaking at and at the very least they should have been joined into the case.

[Cycle]

We know exactly what happens when someone defends a lawsuit like this in the way you suggest. When Rude Music sued Newt Gingrich in almost identical circumstances his side came out firing. They sent out a 12B6 at the outset on the basis of possessing a valid license... it was denied by the court (as the vast, vast majority of 12B6's are), as was the follow up attempt to convert the 12B6 into a motion for summary judgement (as can happen when evidence is attached). He raised the point again in his affirmative defences, both by reasserting that there was no claim upon which relief could be granted and on the basis of having a valid license... both (along with a number of his other defences) were struck out by the court on the basis that they weren't affirmative defences and it was thus inappropriate to include them there. And that was also in Illinois, so there's no question of different jurisdictions handling similar cases in a different manner.

We've seen this play out before and we've seen the steps you suggest he should have taken if he possessed a valid license do nothing but rack up additional fees and annoy the judges; never a good thing to do at the start of a case.

The above is completely wrong.

Gingrich did not file a 12B6.  He answered, and then opposed a motion to strike.  Here is the docket:  Rude v. Newt 2012, case no. 1:2012cv00640.  The only party that filed a 12B6 is another defendant, and they prevailed on lack of jurisdiction.

Your statements are not based on facts but fabrication.  Given this, I wholly agree discussing this issue with you further is pointless.