Dispatches from the Culture Wars: Injunction Against Expelled

Link? Source? Not finding anything in a Google news search.

Posted by: chezjake | May 4, 2008 10:35 AM

Much as I detest Expelled, I've had mixed feelings about Ms. Ono's suit since it was announced that Stanford's Fair Use Project would be defending the movie's use of Imagine. I tend to find myself supporting the positions the Project takes, such as its defense of Carol Shloss against the harassment of the James Joyce estate.

Posted by: Elf Eye | May 4, 2008 11:09 AM

Where's your source, Ed?

Posted by: Martin | May 4, 2008 11:26 AM

This may be moot until they try to issue the DVD "Director's Cut." Expelled played for 2 weeks here in the bustling metropolis of Cheyenne, WY. I somehow doubt that extra prints will be needed.

I was interested to learn (on the SciAm podcast) that the Expelled crew actually interviewed Michael Behe but elected not to include the interview. Mr. Mathis also cast aspersions about what kind of Catholic Ken Miller had to be in order to support evolution. When the podcast ended I found myself disliking Mr. Mathis.

I'm actually sorry that Expelled is crawling back under its rock so quickly. ID does not thrive under scrutiny and there was a lot of pro-evolution press coverage simply because of the movie.

Posted by: Preston | May 4, 2008 11:34 AM

Hi Larry! - ever consired looking at WorldNutDaily? Doesn't seem you looked too hard! -DJ
PS posted a comment with three other links but it was held up. :(

Posted by: DingoJack | May 4, 2008 12:24 PM

Try caltholicnewsagency.com, prnewswire.com (publicy people for Expelled),ponzo.blogspot.com. I'm sure there are far more reliable sources than this, if you can be bothered serching for them! -DJ

Posted by: DingoJack | May 4, 2008 12:35 PM

I've been to WND (where is my bottle of hand sanitizer!?) plus prnewswire.com & ponzo.blogspot.com (couldn't get the catholicnewsagency.com site to open but will try again). I didn't find the item! Could someone provide a link? Sorry. :-(

Posted by: Elf Eye | May 4, 2008 12:47 PM

DJ, I've now been to catholicnewsagency.com as well, and the issuance of an injunction was not mentioned there, either. All four sites cover the Expelled controversy, but what I am looking for specifically is coverage of an injunction that would have been issued sometime during the course of the last seventy-two hours. (But maybe Ed heard of it via personal communication and that is why there is no coverage yet?)

Posted by: Elf Eye | May 4, 2008 12:59 PM

Larry, it is utterly pointless for you to deny your identity when you keep using the same lame aliases and catchphrases time after time. It's like a damn fingerprint. I suppose it's a helpful identifier for the bloggers whose sites you try to infest, though.

Posted by: Squiddhartha | May 4, 2008 1:23 PM

If this is true, I'm confused. Why would the producers of Expelled, a film the promotes ID, use a song in their soundtrack that intermittently calls for people to imagine there's no heaven, no hell, and no religion? I suppose if they produce a sequel, we can expect it to utilize Rush's "Roll the Bones".

Posted by: Chris Berez | May 4, 2008 1:30 PM

Chris, you've missed all the controversy. They play the part of the song that says "nothing to kill or die for/and no religion too" during a montage of footage of people marching around a large public square (possibly in China) and Stalin waving. The Expelled team is claiming that this was fair use because it is commentary on the song; needless to say that claim is being disputed.

Posted by: nicole | May 4, 2008 1:39 PM

Yes, Ed, I have checked all over and I have not found another source for this information -- and I know a lot of good places to look.
What is the likelihood that a judge would issue such a non-emergency injunction over the weekend?

The best place to go, xyzLarry, is the PACER login for the Court where the case has been filed. Of course, I don't expect you to be able to afford the $0.64 it cost me to find the Order - which, by the way, was issued on Wednesday, not on the weekend.

I expect that xyzLarry's posts will be deleted soon, as he has been banned from posting here.

PS posted a comment with three other links but it was held up. :(

What are your three other sources? Why didn't you post them?

It seems that xyzLarry is still incapable of reading for comprehension. DJ said that he tried to post them, but they were held up. As Larry well knows, posts with three or more links are held up for moderation at ScienceBlogs. Since Larry's posts are still present, it is obvious that Ed is not currently checking out this blog.

Posted by: W. Kevin Vicklund | May 4, 2008 1:45 PM

For those curious, I have transcribed the actual Order issued by Judge Stein on April 30, 2008. As is typical practice, the order was written by the moving party (here, the plaintiffs) and modified as needed by the Judge. Since I couldn't get strikeouts to work, I am not showing the deletions made by the Judge, merely the additions and amendments (in italics). Emphasis has been removed, as well as header info. Typos are mine, but word choice is in original.

ORDER TO SHOW CAUSE
Upon the annexed Affadavit of Yoko Ono Lennon dated April 29, 2008, Declaration of Dorothy M. Weber, Esq. dated April 30, 2008, Affadavit of Darnetha L. M'Baye dated April 29,2008, Declaration of Nancy Weshkoff dated April 29, 2008, together with the Exhibits annexed thereto; the accompanying Memorandum of Law and the Summons and Complaint, and all proceedings heretofore had herein

-page-

IT IS ORDERED BY STIPULATION OF THE PARTIES in open court on April 30, 2008 or as otherwise ordered by this Court, Defendants Premise Media Corporation, L.P., C&S Production L.P. d/b/a Rampant Films, Premise Media Distribution L.P. and Rocky Mountain Pictures, Inc. (the "Defendants"), be and they are hereby are enjoined PENDING THE HEARING of the motion for a preliminary injunction from distributing any additional copies of the Movie "Expelled: No Intelligence Allowed," (the "Movie") beyond those third party venues which possess and are showing the Movie as ofthe date of this Order. Defendants ALSO AGREE THAT pending the hearing of the motion for preliminary injunction they WILL NOT MANUFACTURE or PUBLICLY DISTRIBUTE ANY CDs or DVDs of THE MOVIE anywhere in the world.

IT IS FURTHER ORDERED that Plaintiffs will be permitted to conduct expedited discovery. Defendants will produce the following documents on or before _May 6_, 2008: (i) a complete copy of the Movie, (ii) Defendants' agreements,

-page-

licenses and contracts with third parties in connection with rights and permissions for all musical compositions or "clips of third-party film or video footage, still photography, and any and copyrighted materials included in the Movie; (iii) documents and opinions obtained by Defendants in connection with their use of the song "Imagine" in the Movie which support any defense of fair use or first amendment; and (iv) Plaintiff will produce documents on or before May 6, 2008, reflecting the exclusive administration by EMI Blackwood Music, Inc.

IT IS FURTHER ORDERED that defendants show cause before the Honorable Sidnet H. Stein, United States District Judge, United States District Court for the Southern District of New York, 500 Pearl Street, New York, New York, Courtroom 23A, on May _19_, 2008, at 4:30 p.m., or as soon thereafter as counsel may be heard, whay an order should not be entered, pursuant to Rule 65 of the Federal Rule of Civil Procedure and the Court's inherent and equitable powers, during the pendency of this action:

-page-

1. enjoining and prohibiting the Defendantys, their officers, agents, servants, employees and attorneys and all persons in active concert and participation with them, from further use of any portion, or the music and lyrics, in any media, of the musical composition written by John Lennon entitled "Imagine", or committing any further copright infringement with respect thereto;

2. recalling for destruction or editing out of any and all references to the Song "Imagine" any and all copies of the Movie from all third-party distributors or editing those copies to remove the infringing Song;

3. awarding to the Plaintiffs costs, attorney fees and such other and further relief as this Court may deem just and proper; and

IT IS FURTHER ORDERED, that good and sufficient service of this Order to Show Cause and other papers on which it is basedshall be made, via hand delivery or Federal Express overnight delivery, to be received on or before April 30, 2008 at 5:00 p.m. on Defendants Premise Media Corporation, L.P., C&S Production L.P. d/b/a Rampant Films, Premise Media Distribution L.P. and Rocky Mountain Pictures, Inc. c/o Allen C. Wasserman, Esq., Locke Lord Bissell & Liddell LLP, 885 Third Avenue, 26th Floor, New York, NY 10022 and

IT IS FURTHER ORDERED, that answering papers, if any, shall be served upon Plaintiffs by hand delivering copies thereof to Plaintiffs counsel, Shukat Arrow Hafer Weber & Herbsman LLP, 111 West 57th Street, New York, New York 10019 on or before May _14_, 2008 at 5:00 p.m.; and

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IT IS FURTHER ORDERED, that reply papers, if any, shall be filed with the Court and served upon Dendants by hand delivering copies thereof to be retrieved by Defendants' counsel, on or before May _16_, 2008 at 5:00 p.m..
On consent, no undertaking is required for the T.R.O.

_Sidney H. Stein_
UNITED STATES DISTRICT JUDGE

Dated: New York, New York
April 30, 2008

ISSUED: _4:23 p.m._

Posted by: W. Kevin Vicklund | May 4, 2008 1:54 PM

Hey Elfeye - I never said they were reliable, sources, just sources. I skimed the WND site and they seemed to think that an injuction had been slapped on Expelled as did the movie's Aust publicy people, the others merely mention such an injunction in passing.
Hmm seems to me that the falling box office (down from arouind 40 people per cinema in the first weekend) is rattling Ben's troops so they're trying to stir up interest. And we bought it. P T Barnum was right - DJ

Posted by: DingoJack | May 4, 2008 2:02 PM

This thread cracks me up. Did you guys really think I was making this up? Thanks to Kevin for transcribing the order, which is available online but only on a pay service. Why hasn't the media covered it? I have no idea, nor do I much care. But it doesn't change the reality of the order one bit. And you really have to laugh at Larry claiming not to be Larry while simultaneously spewing his usual (and utterly fucking bizarre) "bvd clad blogger." I'm afraid I'll never understand either Larry's obsession with my underwear (I don't wear BVDs, by the way) or the fact that he actually thinks that the 4000th time he posts here will be the time I don't delete his comments. Up the dosage, Larry.

Posted by: Ed Brayton | May 4, 2008 2:09 PM

Well blow me down!
An actual injunction, issued on Wenesday 30 April, 2008. Guess a weekend hearing wasn't needed after all. -DJ

Posted by: DIngoJack | May 4, 2008 2:10 PM

By the way, my reading of the Order is that it is a Temporary Restraining Order, rather than an actual Preliminary Injunction, the hearing for which is to occur on the 19th.

Does anyone read the comic Pearls Before Swine? Larry reminds me greatly of Larry the crocodile (and the rest of the crocs, rolled into one person).

Posted by: W. Kevin Vicklund | May 4, 2008 2:20 PM

Persecution!!! Unfair!!! Persecution!11 Godless anti-Christian courts!! Persecution!! Jesus prophesied it; persecution!! 111 Judicial activism11111 (I mean, !!!!!) Athiests!!! God-haters!!!!!! Persecution!!! eleventy-eleven!!!!

Posted by: Susannah | May 4, 2008 2:27 PM

Larry - In case you haven't been keeping up with the news. In China health officals have just admitted that there is a serious outbreak of a contagious viral infection that causes foot & mouth damage (just in time for the Olympics). In Burma a severe hurricane has slammed into the coast, killing, injuring and making homeless an unknown number of people. It is expected that the referendum designed to allow the country to transit to a more democratic goveernment may have to be postponed. In Chile a volcano, dormant for 1000 years, has begun to erupt, most nearby inhabitants have fled, however a few have opted to stay. The plume now streches into Argintina. (And that's just last night's news).
Why weren't the media all over it? Because Expelled is a non-story compared to the real news. -DJ

Posted by: DingoJack | May 4, 2008 2:28 PM

If NO websites have reported on it, then WHICH websites have been closely following this non story, Larry? -DJ

Posted by: DingoJack | May 4, 2008 2:38 PM

It hasn't been widely reported because it is not particularly newsworthy. It's just a consent decree where the producers agree not to do something they were not going to do anyway, pending a later hearing on the merits. When the Judgment comes down that it is Fair Use (as it almost certainly is) be sure that the gang will be trumpeting that as a triumph over the guy who claimed to be "more popular than Jesus."

Posted by: kehrsam | May 4, 2008 2:39 PM

Real news organisations have real stories to report. This doesn't even rate a footnote on the society (dog vomit) pages. -DJ

Posted by: DingoJack | May 4, 2008 2:41 PM

To me, this isn't a clear cut case of Fair Use or not.

While the clip is short, the context is literally critical of the song in a way the author wouldn't have granted license to, and used in a supposedly educational format, there are two major factors that I think will rule this as a copyright violation rather than Fair Use.

The first is the for-profit nature of this documentary. That is taken into account in Fair Use which is partially intended to prevent owners from pricing their licenses out of the range of academic inquiry. Second is the nature of the commentary. The purpose of the movie is not to critique the song "Imagine", it's primarily used as an ironic aside. Removing it from the movie would not affect the argument that science=atheism=mass murder in any way.

Personally, the way this company approached copyright in general (arrogant, clueless and dishonest by turns) sinks the notion of fair use completely for me in this instance. That said, I probably won't argue the court's verdict on this one regardless of the outcome.

Posted by: Left_Wing_Fox | May 4, 2008 2:46 PM

As I've said in another place, I'm not sure fair use is a defence here. The commentary (insofar as there is any) is on the ideas expressed in the lyrics, so quotation of the lyrics would be fine; but the film doesn't do that. It reproduces a significant chunk of a copyrighted sound recording. It doesn't comment on that recording. Where's the fair use?

Posted by: Robin Levett | May 4, 2008 3:02 PM

Larry

Movies do indeed have soundtracks - and reproducing someone else's (copyrighted) work as part of that soundtrack is breach of copyright unless there is some commentary on that recording. Had Stein sung the words, then there wouldn't be the same issue; the question would then not be a question of copyright in the sound recording, but in the lyrics and music themselves. The problem you have is that you ignore the fact that there are three separate copyrights involved here.

Posted by: Robin Levett | May 4, 2008 3:20 PM

You're getting tedious now Larry, might be time you went to the "naughty stool".
Robin Levett's point is that John Lennon would not have given permission for a magazine, webpage or movie to use a quote or soundbite of "Imagine" to be used in this context.
I assume you can read? Or is your idjit brother Cletis explainin' it to ya? -DJ

Posted by: DingoJack | May 4, 2008 3:21 PM

Left Wing Fox wrote,

The purpose of the movie is not to critique the song "Imagine", it's primarily used as an ironic aside. Removing it from the movie would not affect the argument that science=atheism=mass murder in any way.

Yes, and other songs could have been used in the same place to the same effect. Patti Smith's "Gloria" comes to mind; anyone familiar with the godless, sinful tradition of rock and roll can provide their own examples.

Posted by: Blake Stacey | May 4, 2008 3:21 PM

How 'bout a nice song from a born-again Christian:
"Cold Ethyl" Alice Cooper - :D DJ

Posted by: DingoJack | May 4, 2008 3:24 PM

"We don't buy the establishment version of it at all. Nor do I think we came from monkeys, by the way... That's another piece of garbage. ... I don't believe in the evolution of fish to monkeys to men. Why aren't monkeys changing into men now? It's absolute garbage. It's absolutely irrational garbage, as mad as the ones who believe the world was made only four thousand years ago... The early men are always drawn like apes, right? Because that fits in the theory we have been living with since Darwin. I don't buy that monkey business... I've got no basis for it and no theory to offer, I just don't buy it."--John Lennon

Posted by: sbh | May 4, 2008 3:30 PM

sbh - Yep you've conclusively proved that as a scientist John Lennon was a good songwriter. -DJ

Posted by: DingoJack | May 4, 2008 3:35 PM

Larry - Kevin found prety much straight away, I found three mentions of it in my (half-arsed) google search, not much of a goose chase. If your too lazy or too cheap to find out about the world then that reflects on you, doesn't it? -DJ

Posted by: DingoJack | May 4, 2008 3:39 PM

The only one who was too incompetent to find it was you Larry...I mean xyz. Maybe you should volunteer to be on the ID side. You're what now in legal cases...0 for 3?

Posted by: Dave S. | May 4, 2008 3:47 PM

Re Larry fucktard Fafarman

Mr. Fafarman, who wears diapers instead of underwear, once again doesn't seem to get the message. He's not welcome here. Do the world a favor and take a long walk on a short pier Mr. Fafarman.

Posted by: SLC | May 4, 2008 3:50 PM

Re Larry Fafarman

I find it rather amusing that Holocaust denier Mr. Fafarman apparently supports the film Expelled which blames the Holocaust, which he says never happened, on Charles Darwin.

Posted by: SLC | May 4, 2008 3:55 PM

SuperNanny says: "To the naughty stool, Larry!" - :) DJ

Posted by: DingoJack | May 4, 2008 3:55 PM

@LarryF:

There is both verbal and nonverbal (symbolic) commentary about the recording.

Nothing in what you quoted even mentioned the recording as such. It is all about the lyrics. That is a separate copyright.

It so happens that the copyright owner for the sound recording is the same as the copyright owner for the lyrics, in this case. Would it help to imagine that the sound recording was by, say, Mick Jagger? - who would not hold copyright in the lyrics, but simply in the recording he had made? Unauthorised reproduction of his recording would be breach of his copyright, and no amount of social commentary on the content of the lyrics, in which he held no copyright, would save the copier.

As I said before - we are talking here about three separate copyrights, and the sound recording copyright is entirely independent from the lyrics copyright.

Posted by: Robin Levett | May 4, 2008 4:07 PM

So therefore the comment was not about "Imagine" but about Dr Myers, thus it is a violation of "fair use". If Expelled had been about John Lenon's lyrics it would be "fair use".
As for your doggerel - as a poet you make a lousy lawyer. -DJ
"Again to the naughty stool".

Posted by: DingoJack | May 4, 2008 4:07 PM

Apparently, Larry is still having difficulty understanding the basic English phrase "you don't get to comment here and all your messages will be deleted."

Posted by: Ed Brayton | May 4, 2008 4:20 PM

"xyz": Go back to Uncommonly Indecent where you are welcome, along with all of Dumbski's other toadies. Your lamerick wasn't funny there, either.

Posted by: Robski | May 4, 2008 4:22 PM

Sorry -- I do have a Pacer account, and I was following (in this level of priority):

1. SCO Group v. Novell, Inc (Utah) (after some years, only countersuit remains)
2. The SCO Group, Inc. Bankruptcy (Delaware) (Does any money remain? Why can't SCO Group actually file a reorganization plan?)
3. Sancho v. U.S. Department of Energy et al (Hawaii) (TRO requested) (where are those physics models and/or calculations? Where is the evidence that either plaintiff understands FRCP?)
4. Premise Media Corporation LP et al v. XVIVO L.L.C. (Texas) (XVIVO hasn't responded yet)
5. Lennon et al v. Premise Media Corporation, L.P. et al (New York) -- Both Plaintiffs and Defendents have been ordered to produce documents by May 6. Premise gets to argue that no Preliminary Injunction should apply in filings due on May 14, rebuttal due on May 16, argument due on May 19. (This case is moving much faster than the others.)

The quoted text is correct, and actually signed by the judge. It means that Premise agreed to the negotiated terms to not distribute additional copies prior to May 19's hearing. The pacer filing lets you see what Lennon et. al. asked for.

So now Premise doesn't have to explain why Iron Man is a better reviewed and attended movie.

Posted by: rpenner | May 4, 2008 4:29 PM

On Premise's choice to agree with Yoko Ono Lennon, et. al. to not distribute additional copies of Expelled so that it need not die a miserable natural death of a bad film:

Well played, Stein. Well played.

Posted by: rpenner | May 4, 2008 4:33 PM

Larry you dribbled:

I know that, but to use PACER you have to sign up for an account and I didn't want to do that.

the $0.64 it cost me to find the Order

Too cheap to spend $0.64 eh Larry? "if your too cheap..."

And you haven't posted a single one of them here

See my post at 12:35Pm, if you can be bothered. "...and too lazy..."

Bloggers are supposed to identify their sources upfront

Ftpm a guy who changes IPs & handles to "hide" his flat lies then skulks away when everyone cries "Where are your sources Larry?" that's just insulting. Grow a brain and think for yourself. "...really reflects badly on yoi, Larry" -DJ

Posted by: DingoJack | May 4, 2008 4:33 PM

This dude says the holocaust never happened? Who is he?

Posted by: King of Ireland | May 4, 2008 5:30 PM

This dude says the holocaust never happened? Who is he?
Posted by: King of Ireland | May 4, 2008 5:30 PM

Larry Fafarman. He gets his kicks out of harassing people on the internet until they ban him, and then complaining that he's being "censored". He's been doing it for years.

And, yes, he supports holocaust denial in addition to creationism and global warming denial. Crank magnetism, as Mark Hoofnagel calls it. He runs a blog called "I'm from Missouri" if you're sadistic enough to want to check it out.

However, I wish people wouldn't cuss at Larry like some people in this thread are. That's not because Larry isn't obnoxious (he is, obviously), but because there's some reason to think he's mentally ill and maybe can't help what he's doing. If it were Bill Dembski or Ken Ham commenting in the thread, I don't care if people call them "fucktard" or whatever. But I do get a little upset when people mock someone who's genuinely mentally ill, as Larry appears to be.

Posted by: Wes | May 4, 2008 5:44 PM

Ed, I'm with all of those that noted the lack of a citation to support the original post (a google search by my at 11:30am didn't pull it up). The post had no link to a mainstream (or otherwise) media source nor an attribution to a reputable person (not even anonymous). The abuse Fafarman/Larry/etc and others got ("go find it yourself") when it turned out you had to locate an obscure (to me, anyway) website and pay to view the actual order to find it shows how unreasonable those responses were.

Fafarman/Larry/etc may be a jerk, but he did make an excellent point in this case about bald assertions. I kind of expect more from a blog by a journalist, and this was was below your normally high standards.

Posted by: Divalent | May 4, 2008 5:50 PM

Out of morbid curiosity, I Googled "bvd-clad blogger."

Nothin' but Larry.

Another of his signatures, "arbitrary censorship", is less indicative; he doesn't show up until page 2. He shows up several times on pages 2 and 3, though.

Repeat the experiment at risk of your own mental health.

Posted by: Squiddhartha | May 4, 2008 6:17 PM

Why are you people trying to reason with someone whom Ed has pretty much established (as far as a non mental-health professional possibly can) beyond a reasonable doubt is mentally ill?

Posted by: Sadie Morrison | May 4, 2008 6:18 PM

Kehrsam,

I'd respectfully disagree that the use of "Imagine" as described will pass as fair use.

I'm not a lawyer, however, I have worked in the film industry for some time. It has been my experience that all productions, regardless of budget, have a simple rule in regards to music; clear everything for any purpose it may be used, regardless of length.

Now I realize this isn't a response based in legal knowledge, however, all of the major entertainment companies maintain legal departments. These departments have always concurred that music had to be cleared, even when it was to the detriment of the company in question. If they had a legal leg to stand on, there's certainly been opportunities for various film makers to go to court to defend their use of unlicensed music. The Expelled producers are the first I've ever heard of even considering it.

But hey, if they succeed, we can look forward to a wave of straight to DVD titles featuring top 40 sound tracks being used ironically.

Posted by: Matthew | May 4, 2008 6:18 PM

RPenner, glad to see a fellow LawGrokker here; do you think SCO will get away with selling Novell's Copyrights as if they were their own ?

Posted by: _Arthur | May 4, 2008 6:23 PM

Divalent wrote:

I kind of expect more from a blog by a journalist, and this was was below your normally high standards.

I didn't link to it because there was no link to it that my readers would have access to. Linking to sites no one can access is no different than not linking at all. I simply reported the truth. You all could think I was lying if you wish. If your newspaper cites a court ruling, do they link to the court ruling? Very rarely, even on their websites. My only standard is to report the truth. If you choose not to believe me because there's no link you can read to confirm it, that's really not my problem.

Posted by: Ed Brayton | May 4, 2008 6:28 PM

Kevin Vicklund said,
By the way, my reading of the Order is that it is a Temporary Restraining Order, rather than an actual Preliminary Injunction, the hearing for which is to occur on the 19th.

And Ed's reading of the Order is that it is an Injunction[sic].

And these two statements do not conflict. A TRO is a form of injunction. I was just clarifying that it was a TRO (which is usually for a set duration) and not a PI (which lasts until the decision on the merits or dismissal). Obviously, I was not clear enough for the resident Troglodytus prolinym.

Posted by: W. Kevin Vicklund | May 4, 2008 6:39 PM

Matthew: I'm a lawyer, but I haven't had anything to do with the subject of Copyright since I took the course in school (1991 or 2, don't remember). So you well may be right. I was just expressing my off-the-cuff opinion based on the four statutory elements of the Fair Use doctrine. I can't see how anyone could claim that the film is profiting from the song.

Does this thread really mean that about half the audience of the movie so far were "Darwinists" who went to see how dishonest it would be?

Posted by: kehrsam | May 4, 2008 6:42 PM

"Does this thread really mean that about half the audience of the movie so far were "Darwinists" who went to see how dishonest it would be?"

Well, I went to see the movie to see how dishonest it would be (I actually bought a ticket for Under the Pale Moon or something, so I didn't contribute to their pot of propaganda pelf.)

I don't think very many other people were in the theater for the same reason, unfortunately.

Posted by: Phoca | May 4, 2008 8:05 PM

Ed: "I didn't link to it because there was no link to it that my readers would have access to. Linking to sites no one can access is no different than not linking at all."

Well, as we see, that was not true. One just had to pay 65 cents once you got there. But in any event, it would have been much better to do what many other reputable bloggers do: provide the link and note that it is a pay site. Or, if that wasn't your source, just state who it was (even if anonymous, or even if second hand).

Apparently a number of other people tried to google it, and to go to the sites that DingoJack *falsely* (and rudely) stated had a report on the order.

For me it was not an issue of your credibility, but without a link there is nothing more one can learn about the ruling beyond your brief description. And it ultimately wasted at least some people's time (mine included) trying to track it down using google and following the bogus information that DingoJack provided. And I'll note that the abuse Fafarman got for his inquiries on *this* issue were not deserved (even if that would be a first for him).

Posted by: Divalent | May 4, 2008 8:44 PM

Divalent, come off it. There's nothing wrong with Ed's reliability, credibility, or reputability. His post on this is just a notice, and you can take it from there if you like. You've got plenty of time or you would not write so much, so you cannot say it's wasted time, for you with so much. You missed the posted points about this F fellow when you say "I'll note" because you didn't, or couldn't, catch the tone, which has a history.

And in the end, Ed was right, the order "enjoined."

Posted by: david | May 4, 2008 10:34 PM

Divalent,

Were you seriously so inconvenienced by your strenuous googling that it warranted such a response?

A source has been provided for the claim. Maybe Ed should have linked to it originally. But that's a rather minor error. It would be a major error if his claim proved to be false, but that's not the case.

Calm down. Take a deep breath. It's not that big of a deal.

Posted by: Wes | May 4, 2008 10:41 PM

I posted this info to my blog (http://acandidworld.wordpress.com/2008/05/04/expelled-enjoined/) too but for those lucky few with WestLaw access, you can follow the case by citation to the complaint (2008 WL 1867133) or the WestLaw docket number, 1:08cv03813. For some reason, WestLaw is only current through April 24, 2008, though...

Posted by: Ames | May 4, 2008 10:41 PM

David: Divalent, come off it. There's nothing wrong with Ed's reliability, credibility, or reputability.

But Divalent said that.

Divalent: For me it was not an issue of your credibility, but without a link there is nothing more one can learn about the ruling beyond your brief description.

I have to agree, none of us was accusing Ed of being a liar, we just wanted to know where he heard the news from. Big whoop. I see no reason why it would have been difficult for Ed to have posted a link, with a note saying, "Here is a link to the original ruling, for those of you who wish to see it. Be aware, however, that it will cost you 64 cents to do so."

There. How hard is that? I have to say that Ed's whole "look, I just report the truth, if you don't believe me that's your problem" attitude strikes me as uncharacteristically petulant and juvenile. Not like it's a big deal...I do agree with Wes there. But it seems to me it's Ed's cranky reaction to a perfectly reasonable request for sources that's made a big deal out of it.

Posted by: Martin | May 5, 2008 12:32 AM

What's Larry got against BVDs? Why should he care about Ed's (or any other ScienceBlogger's) underwear? Sounds like an unhealthy obsession to me!

Honestly.......... people like him make me almost embarrassed to be a crazy person! :-)

Posted by: themadlolscientist | May 5, 2008 12:42 AM

Martin wrote: But it seems to me it's Ed's cranky reaction to a perfectly reasonable request ...

Such whining. If you don't like this one write your own blog.

Posted by: tomh | May 5, 2008 12:52 AM

I actually do agree with Martin here, and I see no whining whatsoever in his comment.

Posted by: Sadie Morrison | May 5, 2008 1:13 AM

RPenner, glad to see a fellow LawGrokker here; do you think SCO will get away with selling Novell's Copyrights as if they were their own ?

_Arthur I don't know what you might mean. They already are in Chapter 11 bankruptcy and are due to be in Chapter 7 by about the time the Utah court makes a decision. The officers of the SCO Group, Inc have driven that corporation into the ground -- but their inability to file a business plan in bankruptcy court leads me to think they are pursuing a goal other than what is best for the shareholders. Their ongoing suits with IBM and other parties aren't going to be helped by this. And Novell has motive to pierce the corporate veil and try to get the individual decision makers to cough up their "converted" (stolen) millions. SCO pisses off everyone, the Utah judge, the US Trustee, their own lawyers.... These executives are going to have this albatross around their necks until the end of time.

Posted by: rpenner | May 5, 2008 1:28 AM

Divalent - What me rude?
I tried at first to post several mentions of "Expelled" & "Injunction" and came up with three Googled possibilities. but it wouldn't let me post them (2 links or less are allowed - I didn't know that, mea culpa). Then I wrote out the links I found while acknowledging they were NOT reliable & that the Google search was "half-arsed". If you wanted more creditable pages conduct a more intensive search yourself, I can't do all your thinking for you.
I'm not a lawyer so I didn't know about Pacer, but for all us non-legal types out here the injunction might as well hace been written in Swahili, I thought information on the case itself would be more helpful for the general reader. -DJ
PS If the Google can't find similar hits at your end take it up with your local Google rep, if the links don't work then take it up with your local IP provider.

Posted by: DingoJack | May 5, 2008 1:29 AM

While Ed could have/should have provided a link for the anally retentive amongst us (of which there are many), it's hardly a big deal.

I don't think that anyone is complaining about those who asked for a link; just those who pushed it, and then decided to lecture Ed about what other bloggers do or don't do, and about how much time they "wasted" looking for a source.

This is a blog. You don't have to pay for it, so you have little to complain about, and certainly not about something that is so trivial. Some people do genuinely believe that it is their job to police the internet, holding people to the highest of standards. The problem is that it usually turns out that they are rampant hypocrites. Let's move on.

Posted by: Damian | May 5, 2008 1:57 AM

Damian hits the nail on the head. I'm not the least bit bothered by people asking for a source; if someone had merely asked, I would have been happy to say what I did say, that the document is on PACER and isn't publicly accessible. My reaction was not to reasonable requests for wanting more information, it was to the silly finger-wagging of "this is below your standards" and "I expect more from a journalist." And my objection to Divalent was to this ridiculous phrase:

The post had no link to a mainstream (or otherwise) media source nor an attribution to a reputable person (not even anonymous).

Apparently I'm not a "reputable person." When a journalist writes a story for a newspaper, they merely cite a document rather than provide links to it. So even if I had cited a newspaper report that didn't show the entire original document, would that really make a difference? Only if you have the presumption that I'm not credible when I report about a document I've seen but a newspaper reporter is. And if you have that presumption of me, I think a little irritation is more than warranted.

Posted by: Ed Brayton | May 5, 2008 2:24 AM

I think Ed is temporarily forgetting that his site is on Scienceblogs and as such gets a lot of views from people who are used to seeing sources cited for novel claims. If I'm reviewing a paper it doesn't matter if its a Nobel prize winner as the author, if he or she doesn't cite a claim properly I will require them to do so before accepting the paper. Ed is simply being held to scientific standards (and pretty mild standards at that, we realize this is a blog but as many have pointed out -- how difficult is it to link to a paywall site? - you see it all the time on other scienceblogs. Nobody, as far as I could tell, was saying Ed was dishonest, just a little hasty with his posting and cranky with his responses (which is the real problem here - on scienceblogs one should not rely on 'authoritah' for your postings - if someone should have the temerity to ask for the source then it should be provided). Ed should be thanking his commenters for providing such good quality control!

Posted by: Sigmund | May 5, 2008 2:34 AM

Divanlent - Oh I see I was "rude" because I said "If you can be bothered"? Well yes I was, since no-one else actually tried the obvious (and I did) I considered it a lazy response. As ststed in posts above I also meant it in the sense of "If you can be bothered following this non-story any further thus allowing the Expelled people to claim there is some interested in thier risable movie" I'll cop to that too. Happy now. Let's move on. - DJ

Posted by: DingoJack | May 5, 2008 2:36 AM

I was one of those looking for a link, so I'd like to weigh in on the subject. I never doubted there was a restraining order/injunction, i.e., never thought, or meant to imply, that Ed was 'making this up'. However, I was anxious to read more on the subject, as I usually am when it comes to stories that Ed covers. So when Ed provides information about his sources, I appreciate it. He is under no obligation to provide such information, but I am probably not the only one who appreciates the fact that he usually does so.

Posted by: Elf Eye | May 5, 2008 5:27 AM

Re Larry Fafarman

I see that Fafarman, the putz. has snuck in again, although probably not for long. I don't want to play lawyer here but if neither side in a litigation requests that the judge declare an action moot, it is my understanding that the judge is in no way required to do so.

Posted by: SLC | May 5, 2008 9:15 AM

Larry - naughty stool -DJ

Posted by: DingoJack | May 5, 2008 9:25 AM

I'm not sure I'm with Yoko on this. Although the issue is "Fair Use" (not free speech), I think Brandeis is still relevant (Whitney v. California, 1927):

If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.

"Enforced silence" is not the answer. The fact that so many people cannot see through the many falsehoods and illogic of this movie demonstrates the failure of science education in this country. The answer is effective public education -- not "enforced science," which is at best an oxymoron.

Posted by: Tony Whitson | May 5, 2008 11:28 AM

Much aso about very little

Posted by: Bill Walker | May 5, 2008 11:34 AM

W. Kevin Vicklund wrote:

For those curious, I have transcribed the actual Order issued by Judge Stein on April 30, 2008.

Judge Stein?

I love to see amusing coincidences like this one.

~David D.G.

Posted by: David D.G. | May 5, 2008 11:42 AM

Am I the only one who appreciates the irony that the judge in this case is named Stein? Hee hee...

Posted by: MattusMaximus | May 5, 2008 12:38 PM

David and Matt:

Why do you think I stated the Judge's last name ;)

Something for the nitpickers to chew on. If Ed had included a link to the PACER site, sometime this afternoon, if you were lucky, you'd finally be getting your PACER account approved.

And then you'd be begging Ed for the 5 paragraphs of instruction necessary to navigate to the actual order. Which is why legal blogs don't usually include links to documents only available on PACER.

Posted by: W. Kevin Vicklund | May 5, 2008 1:27 PM

"Enforced silence" is not the answer.

And it's not the solution being advocated here.

Soon as the producers do the right thing and pay up, we can go on talking. They should NOT get their say by trampling on the rights of others.

(And, to repeat, the rights being talked about here are not only Lennon the songwriter's, but Lennon the performer's.....)

Posted by: gwangung | May 5, 2008 1:32 PM

gwangung writes (quoting me)

"Enforced silence" is not the answer.

And it's not the solution being advocated here.
Soon as the producers do the right thing and pay up, we can go on talking. They should NOT get their say by trampling on the rights of others.

I don't disagree with that. On http://curricublog.org/2008/05/05/expelled-enjoined/ I wrote

Of course Yoko has every right to protect her property interests, but let's just not pretend that any victory for her in this case is a real victory for the larger cause of public enlightenment.

But I take it that the people are blogging about this here not mainly out of concern about John Lennon's rights, but concern about the other wrongs this movie perpetrates.

Posted by: Tony Whitson | May 5, 2008 4:28 PM

Perhaps I can be clearer and say that this injunction isn't an end result, but it's part of the same disrepect and muddy thinking that the creationist movement is shot through with. They have no respect for other people's work if they don't agree with them--they'll lie, cheat and steal to get what they want. It's part and parcel of their entire movie. They don't make a difference between the performer's rights and the songwriter's rights and they'll cheat and steal to get their way.

Makes a hash out of the point they were trying to make, doesn't it?

Posted by: gwangung | May 5, 2008 4:52 PM

No, people post elsewhere because they are upset with the many lies told in Expelled, they post elsewhere because they are upset that Expelled lied to its interviewees, they post elsewhere because they are upset that Expelled incorporated XVIVO's visualizations, and they post here because they are upset with Expelled using John Lennon's music without permission -- something so obviously true that Premise's lawyers stipulated to the order banning distribion of additional copies.

They are all separate subjects, so please try to stay on topic, Mr. Whitson.

Posted by: rpenner | May 5, 2008 4:55 PM

Oh come on people. Why the angst with the lack of a link? You know that the Lennon estate requested an injunction. Why doubt Ed's reporting that one had been granted. A judge is pretty much required to do that if it is not false on its face.

I have never seen Ed make something up in the couple of years(?) I have been poking around on scienceblogs. If he ever reports something in error, it is because his source was in error in which case he admits this when he discovers it.

Give the man a bit of latitude OK?

Posted by: Andrew | May 6, 2008 7:06 AM

rpenner wrote:

[People] post here because they are upset with Expelled using John Lennon's music without permission ...

I had suggested that if people are concerned about the many other wrongs being perpetrated by Expelled, we should be aware of how the lawsuit could be used as confirmation of the movie's dishonest storyline about their "truth" being suppressed by any means -- regardless of the merits or the outcome of the lawsuit, or Yoko Ono's justification in bringing it.

If I am wrong in thinking that people are blogging about this here because of concern over the evolution conflict -- if in fact we would have seen these same people and the same threads if Lennon's copyright interests were being infringed in the same way by any other kind of movie, for example -- then I stand corrected.

Posted by: Tony Whitson | May 6, 2008 1:36 PM

Tony Whitson, I think you are focusing on pedantic matters to the exclusion of the big picture.

I might be concerned of that if Yoko Ono had a reputation as a famous biologist -- but when you look at her publications in the field, they are really meager and she doesn't bring in funding to the biology department.

As the forces behind Expelled are liars of some ability, I have no concern that the facts might align partially along their story lines, because whether it is 5%, 25% or 75% in agreement with their story, these people are basically unsatisfied with the factual story and will tell an outrageously different one forcing us to respond.

The thought that an evil cabal of biologists or atheists might be issuing orders to Yoko Ono is ridiculous. I dare the DI or the makers of Expelled to assert it!

On the other hand, I too can be pedantic...

I made my context explicit in the original. I repeat that they post here because they are "upset with Expelled using John Lennon's music without permission." That they post at all is probably mostly because they consider the makers of Expelled to be scoundrels and the posters here are in no way to constrained to evaluate the film makers' ethics and morals from the record of this narrow issue. It might be partly that they do think on the narrow issue, Expelled misappropriated Lennon's words and performance and associated them with issues Lennon made little or no comment on (Nazis, the Holocaust, Darwin, Biology, Lenin, etc.) and did so in a way that was not protected as parody or satire of Lennon. (C.f. the Sesame Street song parody: Letter B and Spinal Tap's "Black Album".) Some might just wish to comment on Yoko Ono.

Here, this thread, is appropriate for all of those. It is not about Free Speech to Yoko Ono, because she, the other Lennon heirs, and the music company argue they are actually being harmed by Expelled.

Posted by: rpenner | May 6, 2008 5:06 PM

rpenner, Ben Stein in broadcast interviews has been saying that Darwinism cannot explain gravity. I don't think they are observing the refined distinctions you are making.

Posted by: Tony Whitson | May 7, 2008 11:08 AM

A Post In Two Parts
Part I:

Well, I know exactly why I'm posting here, there and everywhere this topic comes up. Because too many people have the mistaken impression that "song" is a synonym for "words". It is not. A song is a piece of music with a sung melody. A songwriter may write the lyrics for a song, or the music of a song, or, as in this case, both. The songwriter has rights under law about the usage of both the words and THE MUSIC of their song.

Think about it. How many of your defenses that this is fair use hold up if what had been played under the montage was a piece of instrumental music (that is, music having no words)?

So the issue is not Creationist/Iders vs. Evolutionists.

The issue is not People Who Hate Yoko Ono (for whatever reasons) vs. Beatles Fans/Lennon Lovers.

It's not even a Freedom of Speech issue. The use of the music - melody and chord progression, for example - of "Imagine" was in no way integral to the point of the film. How does the use of ANY music "criticize or comment" in any way on academicians being fired or censured for their views? The plain fact is that the filmmakers could have made their film, and they even could have made that specific point perfectly well without using the music of "Imagine". Their rights were not violated in any way whatsoever.

The real issue here is Documentary Filmmakers Rights vs. Songwriters (lyricists AND composers) Rights.

Posted by: Terpsichore | May 7, 2008 1:25 PM

Terpsichore:

Leni Riefenstahl had it so much easier making her propaganda.

Posted by: democommie | May 7, 2008 6:06 PM

A Post in Two Parts

Part II:

The real issue here is Documentary Filmmakers Rights vs. Songwriters (lyricists AND composers) Rights.

And while I, like many of you, do not want to deliberately curtail another artist from producing new works, I have to side on the side of the songwriters in this particular case. And yes, it would not matter to me whether I agreed with the message of the film or not.

It is not the message that is being criticized here but the methods used to convey the message that are being criticized. The makers of Expelled violated the law by their methods. Whatever follows from that is no reflection upon the message of their movie. Any injunction will not be because of the MESSAGE of the movie, but because of the illegal METHOD (or methods) the filmmakers used in trying to convey that message.

Yes, unquestionably, the exact same thing would have happened if Michael Moore or Al Gore had used "Imagine" in this way without permission in their documentary films. I don't remember anyone bringing any copyright infringement suit against "An Inconvenient Truth" or "Sicko", which suggests that the filmmakers in those cases "played by the rules" and either hired a composer to write new music, or properly licensed any other recorded music used.

A composer can charge a lot of money for a license, or they can license a use for free if they like. But more importantly, the license is how the composers really get paid, through royalties. If the filmmaker mistakenly thinks "ooo, this is Fair Use", and does not request and get a license, the composer gets no money because the mechanism through which they would collect the royalties does not function. Hence the damage done. Hence the reason for an injunction. The defendant should not be able to continue to collect anymore money while royalties are not

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