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US Supreme Court loaded with First Amendment cases

dcwriterdawnreader comments 25 Share this story The First Amendment is being put to the test on multiple levels this term before the US Supreme Court.

The high court will hear cases about the right to trademark offensive names and whether merchants have a right to inform customers that a credit-card surcharge is actually a surcharge.

Two cases involve the free exercise of religion clause of the First Amendment.

The first is about whether Missouri breached that clause by supplying recycled tire material for playgrounds to public and secular schools, but not to religious schools.

The court has already decided to hear the Missouri case, but it has not decided whether it will consider a request to revive a challenge to Utah's law against polygamy.

That lawsuit claims the law is a violation of "religious liberty rights protected by the First Amendment." (PDF) At this stage, however, the justices most likely could decide this case without actually having to weigh in on polygamy or the First Amendment. More on that later. First up on the docket is Expressions Hair Design v.
, which the justices are to argue Tuesday.

A law in 10 states forbids merchants from imposing a surcharge on goods paid for via a credit card.
Surcharges help merchants recover the so-called "interchange" fees banks charge them for accepting credit cards.
Strangely, in those 10 states, merchants may offer "cash" discounts.

Either way, the result is the same: people who use credit cards can be charged more. But how this pricing structure is described to customers is at the heart of the First Amendment battle.

The laws require that merchants inform customers that price differences for cash or credit purchases are cash "discounts" and not credit card surcharges.

This means merchants are not allowed to charge a base price before tacking on a fee to those using credit cards. frankieleon In New York, breaching that law, heavily backed by the banking industry, is punishable by up to a year in jail. Merchants brought a challenge to the Supreme Court contending the measure is a violation of their First Amendment rights of speech because it restricts what they can say about their prices, not how much they can charge. What's more, they say the law does not protect consumers. "Its effect is to criminalize truthful speech conveying price information," they argue. New York maintains the law is designed to minimize profiteering. "... the imposition of a surcharge is not an act of speech that the First Amendment restricts the government from regulating." Meanwhile, the justices are scheduled to hear another First Amendment case, Lee v.

on January 18.

The case essentially asks whether federal intellectual property regulators can bar people from trademarking an offensive name. A section of trademark law actually forbids the US Patent and Trademark Office (USPTO) from approving a trademark if it "consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." The issue reached the justices in a case concerning a Portland-based Asian-American rock band that sought to trademark its name, The Slants. Previously, decisions have come down on both sides regarding trademarking offensive names.

The most notable denial is likely the name of the NFL's Washington franchise, "Redskins." But lesser-known denials include "Stop the Islamization of America," "The Christian Prostitute," "AMISHHOMO," "Mormon Whiskey," "Ride Hard Retard," "Abort the Republicans," and "Democrats Shouldn't Breed." By contrast, other potentially offensive names have been trademarked.
Some of these examples include "Dangerous Negro," "Celebretards," "Stinky Gringo," "Midget-Man," and "Off-White Trash." In the Slants case the justices agreed to review, the US Court of Appeals for the Federal Circuit cited the First Amendment and sided with The Slants and its founder Simon Tam.

The appeals court struck down that entire section of trademark law, ruling that "the First Amendment protects "even hurtful speech." Tam said the band's name is to bring awareness to racial and cultural issues.
In its appeal, the government argued that being denied a trademark is not a "restriction on speech" because trademarks are "federal benefits" to advance intellectual property rights. (PDF) Another First Amendment case the high court has agreed to hear is Trinity Lutheran Church of Columbia v. Pauley.

This case doesn't concern free speech, but instead deals with the First Amendment in the religious context.

The case involves recycled tires and a Missouri grant program that provides shredded recycled tire pieces to soften playgrounds.

The dispute is this: Trinity Lutheran argues that its constitutional rights are being violated by being excluded from the grant program.

The church says its members have a right to exercise religion while at the same time being treated the same as others. Nathan Barry Missouri counters that the state has done nothing to interfere with the church's ability to worship or run its church child daycare program. Missouri's constitution prohibits state funds from going "directly or indirectly, in aid of any church, sect, or denomination of religion." And Missouri also said that the First Amendment prohibits government from making laws that "prohibit" the free exercise of religion.

But Missouri also says it is free to enact laws that "frustrate" religion. Many groups watching this case suggest that a ruling in favor of Missouri could jeopardize government funding for a wide array of faith-based social services, including soup kitchens and even battered women's shelters.

The justices have not announced a hearing date. The final First Amendment case before the high court also touches on religion. Brown v.

concerns a polygamous Mormon family from Utah on TLC's Sister Wives reality TV show.

The family sued Utah over the state's anti-polygamy law, and a federal judge struck down (PDF) portions of the law that made "cohabitat[ing] with another person" illegal if they weren't legally married.

But a federal appeals court ruled that, because the state and local county said they would not prosecute—even after police opened an investigation once the show aired—the case was therefore "moot" and should not have been decided by the lower courts. The family said it moved to Nevada to avoid prosecution. But on appeal to the Supreme Court, the Sister Wives family wants that federal appeals court's decision (PDF) overturned.

They say a lawsuit can't simply go away because the government adopted a non-enforcement policy during the pendency of litigation—a non-enforcement policy that is not even enforceable. "At its core, this case concerns whether a Utah statute that bans married persons from engaging in voluntary cohabitation with other persons is unconstitutional—either as a violation of Petitioners' sexual privacy rights protected by this Court’s decision in Lawrence v.

Texas, 539 U.S. 558 (2003), or their religious liberty rights protected by the First Amendment," according to the family's petition to the justices.

The petition adds that "this constitutional question is currently blocked from continuing on the merits." The justices are to consider whether to hear the case at their January 19 private conference.

The court only has eight members, as we await President-elect Donald Trump's pick to replace Justice Antonin Scalia, who died in February.

Just before trial, The Turtles settle copyright suit against Sirius XM

Enlarge / Advertisement for The Turtles' "Happy Together," from a 1967 issue of Billboard magazine.reader comments 21 Share this story Members of 1960s rock band The Turtles sued Sirius XM in 2013, saying that even though federal copyright doesn't apply to pre-1972 sound recordings, they deserve to get paid under state copyright laws. The case was set to go to trial yesterday, but it appears that the two sides have worked out their disagreement.

Terms of the settlement weren't disclosed.

The filing of settlement papers was noted by both The Hollywood Reporter and National Law Journal. US District Judge Philip Gutierrez had already ruled that Sirius was liable under state copyright law, so the trial would have focused on how much the band should be paid. He also ruled that some types of damages, like punitive damages, would not be available to the plaintiffs.

Two former band members of The Turtles, working as "Flo & Eddie," were representing a class of thousands of owners of pre-1972 music. After the band members filed their lawsuit, the major record labels also sued Sirius and streaming service Pandora over pre-1972 copyrights.

Those cases settled for $210 million and $90 million, respectively.

But those settlements didn't resolve the case brought by The Turtles. Terrestrial radio stations aren't required to pay sound recording royalties, a situation that has long rankled record labels and some artists. The settlement is likely to be a relief for Sirius XM defense lawyer Daniel Petrocelli, who has an even higher-profile trial coming up soon. He's representing President-elect Donald Trump in a class-action case where former students of Trump University say they were defrauded.

The trial is set to begin November 28, but Petrocelli has asked for it to be delayed until January.

The Turtles’ $100M trial against Sirius XM starts tomorrow

Enlarge / Mark Volman (Flo) and Howard Kaylan (Eddie) of The Turtles, pictured here at a 2007 performance.

The two musicians are heading up a class-action copyright lawsuit against Sirius XM.Stephen J.

Boitano/LightRocket via Getty Images reader comments 20 Share this story Members of the 1960s rock band The Turtles will get their day in court against Sirius XM on Tuesday.

They seek to wrest up to $100 million from the satellite-radio giant for infringing their copyrights. The case will send a strong signal as to the value of state-level copyrights.

The US copyright system didn't grant copyrights on sound recordings until 1972.
Some states, however, have offered their own, more generous copyrights, which allow creators to get royalties paid for pre-1972 works. Now The Turtles will be putting those state copyrights to the test in a class-action case they're leading in Los Angeles.

The case was filed in 2013, and the Turtles said at that time they would seek at least $100 million in damages. Terrestrial radio doesn't have to pay sound royalties for the songs it plays, an exemption that has long rankled artists and recording labels.

But no such exception exists for satellite radio or online streaming services like Pandora. After The Turtles filed suit, the RIAA sued both Sirius and Pandora over pre-1972 copyrights, winning a $210 million settlement from Sirius and $90 million from Pandora.

But those settlements didn't resolve The Turtles' case. The Turtles' hits include "Happy Together," "She'd Rather Be with Me," and their cover of the Bob Dylan tune "It Ain't Me Babe." After the band's breakup in 1970, some of its members went on to become the musical comedy duo Flo and Eddie. Flo and Eddie are no strangers to asserting their rights in court. Billboard notes that the musical duo have brought lawsuits against music pirates and filed one of the first "sampling" lawsuits against the hip-hop trio De La Soul.

That case was settled on confidential terms. Sirius XM will be defended by Los Angeles litigator Daniel Petrocelli, who isn't happy about the timing of the case.

That's because Petrocelli has another client with an upcoming high-profile trial: Donald Trump. The Sirius XM trial is starting tomorrow in Los Angeles, while a class-action fraud trial against now-defunct Trump University is scheduled to begin November 28. Petrocelli asked judges in each case to delay trial, but was rejected by both. However, the National Law Journal reported today that Petrocelli has made one last attempt, asking US District Judge Gonzalo Curiel to delay Trump's testimony until January, when most of the president-elect's transition work to the White House will be done.

Microsoft Tears off the Band-Aid with EMET

Microsoft last week extended the end-of-life expiration date to July 2018 on its exploit mitigation add-on, the Enhanced Mitigation Experience Toolkit (EMET).

But for some time, the once-useful tool has been well on its way out to pasture. While EMET was never meant to be anything more than stopgap protection against exploits, attackers and white-hat researchers accelerated its demise with a number of publicized bypass attacks.

That situation, plus Microsoft’s urgency to have users migrate to Windows 10 and the array of new memory mitigations included in the latest OS has brought the curtain down on EMET. “It was a stopgap.
It was never supposed to be something [Microsoft] wanted people to use longterm,” said Cody Pierce, director of vulnerability research at Endgame. “They want people to upgrade Windows 10; for the good of their customers, they want to transition them to Windows 10 where there are some protections baked into the operating system.” Foremost is Control Flow Guard, a technology built to counter memory-corruption vulnerabilities, which has been available since Visual Studio 2015 and is also built into Windows 10 and Windows 8.1.

Control Flow Guard is thought to be a primary impediment to use-after-free attacks, which became a favorite exploit once ASLR and DEP put a damper in buffer overflow attacks. “There are a lot more compile time mitigations [in Windows 10] like Control Flow Guard, and a new Return Flow Guard feature,” said Darren Kemp, security researcher with Duo Security. Kemp also pointed out that since Windows 10’s mitigations are integrated into the operating system, unlike EMET, there are fewer instances where users will notice a performance hit, which was increasingly common with EMET.

Also, EMET required close care when configuring it to work, otherwise it could break certain application processes. “Since it’s not integrated, you don’t get the same type of tight coupling,” Kemp said. “With a lot of stuff in EMET, you have to test the software you’re applying it to, to make sure the mitigations don’t cause problems.
It hooks into functions and injects features.
If software does non-standard things, it can cause problems with those apps.” Microsoft, meanwhile, has not had EMET on a consistent upgrade path since version 5.0 dropped in 2014.

This was an abrupt change from the early days when EMET was introduced and exploits were unleashed within days of Patch Tuesday releases.
In announcing the deadline extension to July 31, 2018, Microsoft’s Jeffrey Sutherland acknowledged EMET’s limitations against modern advanced attacks, its performance and reliability shortcomings, and urged users toward Windows 10, which makes the most of hardware virtualization to sandbox applications and links before they can harm the operating system. “With the types of threats enterprises face today, we are constantly reminded of this simple truth: modern defense against software vulnerabilities requires a modern platform,” Sutherland said. The true value of any mitigation continues to be how well it raises the cost of attacks. Pierce illustrated how advanced attackers have blown well past EMET’s menu of mitigations with advanced logic that automates many facets of an attack that its defenses cannot keep up with. “If you’re an exploit kit writer and you acquire a zero day or develop an exploit, you have to get the most bang for your buck; and part of that is supporting a wide range of targets.
If you’ve got a Flash exploit, you want it to work on Firefox, Windows, Linux and more and you have to come up with ways to make it easier on you,” Pierce said. “A lot of the ways they’ve figured out to do that bypasses a lot of these late-hook defenses like EMET.

They’re getting more value out of it.

The types of exploit mitigations EMET provides were limited in utility due to the nature of exploitation.
If you look at an exploit kit from 2010, it looks wildly different than it does now.” Duo’s Kemp, meanwhile, says Windows 10 is one of the hardest targets to breach today. “That’s the nature of this stuff: raising the bar.
If you’re an attacker, do you want to invest a lot of time and energy to figure out a way around this, or are you going to go after something else?” Kemp said.

Justin Timberlake, Britney Spears denied fees after winning patent case

Darrell Metcalf alleged that Justin Timberlake's FutureSex/LoveShow Tour, pictured here in Exhibit B, infringed on his patent for "large-audience displays."Court documents reader comments 3 Share this story It's getting easier than ever for defendants to win fees in patent cases, especially against "non-practicing entities" with no products.

But don't tell that to pop stars Justin Timberlake and Britney Spears. The two celebrities and their respective production companies were sued by an entity called Large Audience Displays Systems, LLC (or LADS for short) back in 2009. The patent-holder who came after them is Darrell Metcalf, the inventor of US Patent No. 6,669,346, which describes a way of displaying video images on massive, arced screens. Metcalf, who lives in California, set up an East Texas LLC called Large Audience Display Systems (or LADS for short) back in 2009, then sued the pop stars in that venue, along with the LA Lakers and the band Pussycat Dolls. The case was transferred to California in 2011.

The judge promptly put the case on hold at the defendants' request, while the patents were under reexamination at the US Patent Office. Ultimately, the office rejected all the patent claims. With that, lawyers for Timberlake and Spears unloaded on LADS, filing a motion (PDF) asking for $755,925.86 in attorneys' fees and costs.

According to the stars' lawyers, the patent-holder took "ridiculous positions" during the re-exam and engaged in "gamesmanship" with regard to disclosing relevant prior art. LADS was a "sham" constructed to manipulate the venue, they claimed. Metcalf, the patent-holder and owner of LADS, hadn't visited the Texas office or picked up the keys. Michael Niborski, one of the attorneys representing the two singers, wrote the following: [M]ail merely accumulated in the basement of the building where LADS claimed to have its business.

This case, it is crystal clear, was nothing but an attempt by Plaintiff to shake out a financial settlement from high-income celebrity entertainers, independent of the merits. Just two weeks after the briefing on the legal fees was complete, US District Judge Manuel Real granted the defendants' fee request in full.

According to his short, four-page order (PDF), "Plaintiff’s litigation tactics have cost both Defendants and this Court to expend time and resources regarding the resolution of what appears to have been a frivolous claim." Not so frivolous The US Court of Appeals for the Federal Circuit has put the singers' fees request on ice, for now.
In an opinion (PDF) published Thursday, a three-judge panel overturned Real.

According to the panel, Real had relied "on both a misunderstanding" of the relevant factors and "a clearly erroneous view of the record." The appeals panel was unimpressed with the venue arguments, and it pointed out that the East Texas court may have been able to assert jurisdiction over the pop stars and their wide-ranging national tours whether LADS was formed in the Texas venue or not.

And the fact that the patent claims were canceled by the PTO "without more, does not support a finding of frivolousness." The appeals judges also expressed concerns with the billing presented.

They noted that partners did 79 percent of the work on the defense case, including simple tasks like e-filing documents. "It appears, moreover, that at least some of the billing entries were unreasonable," they wrote. Timberlake and Spears, who are represented by the same team of attorneys, will have another shot at recouping their fees, if they want.

The case has been remanded back to Judge Real with instructions to consider the fees issue under the guidelines presented by the opinion. In 2014, the US Supreme Court decided the Octane Fitness case, which made getting fees in patent cases substantially easier. LADS dismissed its case against the Pussycat Dolls in 2010, without prejudice, meaning it can be re-filed.

The case against the Lakers was dismissed with prejudice in 2012.

Can you trademark an offensive name or not? US Supreme Court...

Enlarge / Portrait of Asian-American band The Slants (L-R: Joe X Jiang, Ken Shima, Tyler Chen, Simon 'Young' Tam, Joe X Jiang) in Old Town Chinatown, Portland, Oregon, in 2015.Anthony Pidgeon via Getty Images reader comments 10 Share this story The Supreme Court on Thursday said it would decide, once and for all, whether federal intellectual property regulators can refuse to issue trademarks with disparaging or inappropriate names. At the center of the issue is a section of trademark law that actually forbids the US Patent and Trademark Office (USPTO) from approving a trademark if it "consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." The case before the justices, which they will hear sometime in the upcoming term beginning in October, concerns the Portland-based Asian-American rock band called the Slants. Previously, decisions have come down on both sides regarding trademarking offensive names.

The most notable denial is likely the name of the NFL's Washington franchise, "Redskins." But lesser known denials include "Stop the Islamization of America," "The Christian Prostitute," "AMISHHOMO," "Mormon Whiskey," "Ride Hard Retard," "Abort the Republicans," and "Democrats Shouldn't Breed." In contrast, other potentially offensive names have been trademarked.
Some of these examples include Dangerous Negro, Celebretards, Stinky Gringo, Midget-Man, and Off-White Trash. In the Slants case the justices agreed to review, the US Court of Appeals for the Federal Circuit cited the First Amendment and sided with The Slants and its founder Simon Shiao Tam in December.

The appeals court essentially struck down the entire section of trademark law about disparaging trademarks when ruling (PDF) the Constitution even protects "hurtful speech." Courts have been slow to appreciate the expressive power of trademarks. Words—even a single word—can be powerful. Mr.
Simon Shiao Tam named his band THE SLANTS to make a statement about racial and cultural issues in this country.... Many of the marks rejected as disparaging convey hurtful speech that harms members of oft-stigmatized communities.

But the First Amendment protects even hurtful speech. The government appealed, and the high court took the case Thursday.
In its petition (PDF) to the high court, the USPTO said that it's not a "restriction on speech" to be denied a trademark because trademarks are "federal benefits" to advance intellectual property rights. The bar on disparaging marks "does not prevent respondent from promoting his band using any racial slur or image he wishes," the government wrote. "It does not limit how respondent may advertise, what songs he may sing, or what messages he may convey." Lawyers for Tam told the justices in a court filing that he gave the band that name in 2006 because he was "following in the long tradition of 'reappropriation,' in which members of minority groups have reclaimed terms that were once directed at them as insults and turned them outward as badges of pride.
In recent times, the most conspicuous examples have been words such as 'queer,' 'dyke,' and so on—formerly derogatory terms that have been so successfully adopted by members of the gay and lesbian community that they have now lost most, if not all, of their pejorative connotations." What's the benefit of trademark, anyway? According to the American Bar Association: Registration on either register provides a number of benefits, including: (i) it grants the right to use the registered trademark symbol: ®, (ii) it grants the right to file a trademark infringement lawsuit in federal court and to obtain monetary remedies, including infringer’s profits, damages, costs, and, in some cases, treble damages and attorneys’ fees, (iii) it acts as a bar to the registration of another confusingly similar mark, and (iv) it may serve as the basis for an international trademark application. Here is a list of papers with the Supreme Court about the case.

Jury says Led Zeppelin did not rip off “Stairway to Heaven”

vinylmeisterA federal jury in Los Angeles on Thursday cleared Led Zeppelin of allegations that the band infringed the opening of the classic rock song "Stairway to Heaven." The jury deliberated for less than a day after a trial that began June 14.

The trial was based on claims that the famous intro to the 1971 song infringed the 1968 instrumental song "Taurus" from the band Spirit. The case, in which tens of millions of dollars were at stake, including Led Zeppelin's reputation, was brought by the trust of Randy Wolfe, aka Randy California.

The suit claimed Zep's opening to "Stairway to Heaven"—an acoustic guitar arpeggiating chords in a descending pattern—was a complete ripoff of California's "Taurus," which he wrote for the band Spirit. Zeppelin toured with Spirit in 1968, and California's complaint alleges that Zep guitarist/songwriter Jimmy Page had heard "Taurus" before the debut of "Stairway to Heaven," which appeared on Led Zeppelin IV in 1971. Ars previously covered all the ins and outs of the case. Page, and Led Zeppelin front man Robert Plant who wrote the words to the song, said in a joint statement to Ars after the verdict that "We are grateful for the jury's conscientious service and pleased that it has ruled in our favor, putting to rest questions about the origins of 'Stairway to Heaven' and confirming what we have known for 45 years. We appreciate our fans' support, and look forward to putting this legal matter behind us." The two took to the stand during the trial on their own behalf. Page testified last week that he wasn't sure there was any similarities between the two songs. "I may have said the chord sequences are very similar because that chord sequence has been around forever," Page testified. Plant testified that he could not remember encountering the band Spirit. "I don't have a recollection of almost anyone I've hung out with," Plant said. He added that he couldn't remember playing with the band at a 1970 venue in England, either. "I can't actually recall Spirit or anyone playing there with the passing of time," he said. William Hochberg, an intellectual property attorney at Greenberg Glusker in Los Angeles, told Ars that "I think the jury understood that Randy California didn't invent the A minor chord with a descending bass line.
In music, as in all creative pursuits, the successful ones stand on the shoulders of giants before them.
If our legal system uniformly banned this age old process of using basic building blocks from the past, our copyright law is misused and the public suffers a creativity drought." He added that it might be "Stairway to Hell" for Wolfe's trust because it likely will have to pay Led Zeppelin's legal fees defending the case. During his closing arguments on Wednesday, the attorney for Wolfe's trust told jurors that Plant and Page had committed copyright infringement and stole from the instrumental "Taurus." "We respect and we value creation,” attorney Francis Malofiy told the 8-member jury, which consisted of four men and four women. “Creation does not mean copying.… Creation means doing something that is unique and memorable." Peter Anderson, the attorney representing Page, Plant and various record labels involved in the case, told the jury that Led Zeppelin never even heard the song "Taurus." And the similarities between the two tracks was because both songs included the "basic building blocks of music." Here are the two songs at issue:

Lawyers who yanked “Happy Birthday” into public domain now sue over...

Woody Guthrie published "This Land" in 1945. The lawyers who successfully got "Happy Birthday" put into the public domain and then sued two months ago over "We Shall Overcome" have a new target: Woody Guthrie’s "This Land." Randall Newman and his colleagues have filed a proposed class-action lawsuit against The Richmond Organization (TRO) and Ludlow Music, the two entities that also claim to own the copyright for "We Shall Overcome." The new suit is filed on behalf of a Brooklyn, New York-based band, Satorii, which obtained a license (at $45.40 for the privilege) to record a version that they sell as a download. However, the band has recorded another version with a different melody, and the musicians are concerned that they'll be sued over it. According to the "This Land" suit, the melody of the song is actually a Baptist hymn from the late 19th or early 20th century, often referred to as "Fire Song." As the complaint states: Guthrie published the Song in 1945 with a proper copyright notice, which created a federal copyright in the Song.

The copyright to the 1945 publication was not renewed.

As a result, the copyright expired after 28 years, and the Song fell into the public domain in 1973. Despite Guthrie’s 1945 publication of the Song, Defendant Ludlow purportedly copyrighted the Song in 1956.

Based on that 1956 copyright, Defendant Ludlow has wrongfully and unlawfully insisted it owns the copyright to This Land, together with the exclusive right to control the Song’s reproduction, distribution, and public performances pursuant to federal copyright law. In addition to the "This Land" suit, Newman filed an amended complaint against TRO and Ludlow regarding "We Shall Overcome" on Friday. Newman later told Ars that his firm isn’t making a point of suing over songs that they feel should be in the public domain. "Certainly if someone brought [a song] to our attention we would [look into it], but I’m not aware of any other songs at this point," he said. "People have bought stuff that I’ve looked into and didn’t agree with them.

From the 1930s to the 1960s there was a lot of copyright fraud going on. You had people trolling the South and copyrighting songs that they didn’t write—they had heard because people in the South were not familiar with copyright laws and their rights, so it happened a lot, in my opinion. You’re not going to see that with Beyoncé, you know what I mean?" TRO did not immediately respond to Ars’ request for comment. Listing image by Library of Congress