ASUCD Court Case 42-43-44 - Davis

ASUCD Court Case #42 Plaintiff: Brent Laabs Defendant: Eric Friedman Status: Dropped by Plaintiff due to a lack of ASUCD standing.

Plaintiff alleges that Defendant violated ASUCD Constitution Article 1 Section 6(2) as well as ASUCD Bylaw 1601 by the use of the GO campaign website.

ASUCD Court Case #43 Plaintiff: Edward Baraona Defendants: GO slate Status: Dismissed due to the Defendants not receiving the Plaintiff's Brief in time.

ASUCD Court Case #44 Plaintiff: Edward Baraona Defendants: ASUCD Senators Eric Friedman, Alexandra Frick, Mara Harris, Cem Turhal, and Molly Sundstrom. Status: Has yet to be accepted

Plaintiff's Brief

Court Case #43 and 44.

Plaintiff: Edward Baraona Lawyers: Steven Ostrowski and Ronald Payne

Complaint

ASUCD member Edward Baraona was offended by the GO website's use of the ASUCD logo used in such a way that it advanced the GO slate. He was particularly disturbed that the ASUCD logo of which he is a member of (ASUCD) was being used to advance ASUCD candidates that opposed him in the ASUCD Fall 2007 Senate Election. Furthermore the Plaintiff was not satisfied with the outcome of ASUCD Court Case #42 and believes that the question of this copyright violation should be answered by the ASUCD Court.

ASUCD Constitution

The GO campaign website is in violation of ASUCD Constitution Article I Section 6 in the following ways: The website is in violation of Article I Section 6 (1) in that the ASUCD logo is being used for a purpose other than charitable or educational purposes. The logo is used for political purposes as the campaign website is for political purposes. The website works to advance the cause of the GO candidates and GO political ideals. As such, the logo is being used on a campaign website so that candidates are more likely to become elected. We will argue that the Defendants conceivable claim that the GO website is only for educational purposes is false. The reason this is false is due to the limited content of actual educational value and knowledge the website possesses. The website however advances the GO candidates running for office. We will also argue that candidates, even ASUCD candidates, are not to use ASUCD for it is in violation of ASUCD's 501(c)(3) of the Internal Revenue Code. The Internal Revenue Code forbids non-profit organizations from advancing the political candidacy of those seeking office including ASUCD candidates. This is further illustrated in ASUCD Constitution Article I Section 6(2)(a).

The GO website is in violation of ASUCD Constitution Article I Section 6(2) due to the GO website using the ASUCD logo to advance GO candidates. The section forbids ASUCD from advancing the candidacy of any office including ASUCD Senate campaigns. The logo is being used to "distribute statements" and is "beneficial" to the GO candidates. It is distributing statements by featuring information on the candidates and its beneficial to the candidates because they are using the credibility of ASUCD to advance their website.

The GO website is also in violation of ASUCD Constitution Article I Section 6(a) in that the GO website is an activity and the promotion of the website is an activity. The GO website is using the ASUCD logo in order encourage people to vote for their ASUCD candidates.

ASUCD Bylaws

The GO website is in violation of Bylaw 1601 in the following ways: The symbol of ASUCD which is shown on the GO website implies support of GO candidates. The GO slate nor the GO SPAC registered organization received permission from the ASUCD Senate to use the ASUCD logo. No vote was taken by the ASUCD Senate to give permission to GO nor was there any attempt by the GO organization to propose such a bill. Furthermore the ASUCD symbols are used in such a way that it supports GO candidates which is in violation of ASUCD Bylaw 1601 (B). The GO organization is not a self sufficient media Unit of ASUCD. The ASUCD logo is being used as an endorsement of candidates which is violation of 1601(C) as GO did not receive endorsements as defined in Chapter Four of the ASUCD Bylaws.

The GO website is in violation of Bylaw 1603 if the Defendant wishes to argue that the GO website is an ASUCD body. If the Defendant were to claim that the GO website is an ASUCD body they would still be in violation due to the fact that they do not receive approval by the Director of Creative Media nor the ASUCD Network Administrator. The GO website was not approved by the Director of Creative Media nor the ASUCD Network Administrator for the purpose of using the ASUCD logo.

Jurisdiction

It is not the purpose or goal of the Plaintiff to cause the disqualification or electoral punishments against the ASUCD candidates of GO. The complaint targets the GO organization and the ASUCD members that run the GO website. Our complaints concern violations outside electoral laws and thus the election committee does not need to be involved. With that in mind this case is without a doubt within the jurisdiction of the ASUCD Court. We will also argue that everything related to the ASUCD is within the jurisdiction of the ASUCD Court. To say otherwise allows the election committee to surpass the ASUCD Court.

Fair Use

United States Federal Copyright Code Title 17, Section 107:

The purpose of the GO website is to recruit individuals to assist on a volunteer basis their political campaigns and thus we would argue that this is a commercial enterprise and not a non-profit educational exercise. We thus believe that the GO website cannot use the above code as a defense. Indeed the above code convicts them.

1986 Policy and Guidelines on the Reproduction of Copyrighted Materials for Teaching and Research:

The Defendants cannot use the above Policy and Guidelines because "Fair use" only extends to non-profit copying and since GO is not a non-profit it cannot use fair use in its defense. The Go slate charges its candidates and receives student donations for political campaigns. They also buy t-shirts, buttons, and other materials in their enterprise and they also sell ticket cover charges for such events as the GO Graduate Event. Furthermore even if GO were to be fair use, which it is not, they would still need permission from the university which GO did not.

Relevance

Defendants may argue that this Court Case is irrelevant and thus should be thrown out due to the fact that Court will likely make a decision on this case after the ASUCD election. We will argue that this is not the case for the following reasons:

GO is a SPAC registered organization and may receive punishments for inappropriately using the ASUCD logo.
GO Senators and Candidates may individually be subjected to penalties from Student Judicial Affairs.
The GO campaign website is a continual violation as long as it contains the ASUCD logo regardless of whether there is an ASUCD election in the near future.
The GO slate may use the campaign website for the Winter 2008 ASUCD Election and may run the same candidates.
This Court Case will not influence the election and that is not the purpose of the Plaintiff.
The Court should make a ruling on this case so as to prevent further abuse in the future.

Punishments

We recommend the following: The GO organization should be referred to Student Judicial Affairs and the Campus Judicial Board. We do not request that the Court make a decision for these bodies but that these bodies simply be referred to. We also desire that the following ASUCD members be referred to Student Judicial Affairs and Campus Judicial Board: Eric Friedman, Alexandra Frick, Mara Harris, Molly Sundstrom, Cem Turhal, Brian Goldberg, John Dryer, Jesse Rosales, Erika Perez, Becca Lovell, and Andrew Kim. We also recommend that a copy of this Court Case verdict be sent to the ASUCD Senate, Student Judicial Affairs, Campus Judicial Board, and the Sports Programs and Activities Center. This is consistent with ASUCD Bylaw 1602. Finally we recommend that the following be censured by the ASUCD Court: Eric Friedman, Alexandra Frick, Marra Harris, Molly Sundstrom, Cem Turhal, Brian Goldberg, John Dryer, Jesse Rosales, Erika Perez, Becca Lovell, and Andrew Kim.

http://www.innovationaccess.ucdavis.edu/home.cfm?id=OVC,23,1729,1730,1783,1890#distribute http://www.copyright.gov/title17/92chap1.html#107 http://en.wikipedia.org/wiki/United_States_copyright_law

Defendant's Brief for Court Case #42

Prepared By

Mr. Eric Friedman Mr. Greg Justice, Lead Council

Prepared For

Hon. Tim Coady, Chief Justice Hon. Russell Manning, Vice Chief Justice Hon. Del Bohner, Associate Justice Hon. Tiffany Setters, Associate Justice Hon. Ora Sraboyants, Associate Justice Hon. Arie Van Gemeren, Associate Justice Hon. John Wheat, Associate Justice

List of Potential Witnesses

Byron Dover, GO Website Designer Jeremy Ross, Election Committee Chair Michael Tucker, ASUCD Advisor

Evidence

ASUCD Constitution ASUCD Bylaws ASUCD Judicial Codes

Statement of The Facts

Byron Dover, a freshman, designed the website. Lovell, Kim, Rosales, Dreyer, and Perez did not design the website and are not responsible for the website’s content.
The ASUCD and UC Davis symbols are not logos on a website. They are links to these respective organizations’ websites, not a statement of support or endorsement.
GO is a slate that runs students for the ASUCD Senate and the ASUCD Executive Office.
The only way for GO to make a connection between our organization and ASUCD on a public website that anyone in the world can access is to provide a link to these organizations on our website. Mr. Dover chose to use symbolic links as opposed to textual links.
It is widespread practice for political campaigns for federal office to use the US Flag or US Seal on their campaign website or marketing materials. Similarly, political campaigns for state office often use the flag of the state of California.
The Plaintiff, Mr. Brent Laabs is an known graduate student, and by default not a member of ASUCD. He has the option of paying his ASUCD fees, however, at the time this case was filed, according the ASUCD Business Office, Mr. Brent Laabs has not paid his ASUCD fees. Therefore, he is not a member of ASUCD and has no right to file suit in the ASUCD Supreme Court.
Use of the UC Davis symbol is irrelevant to this case. The ASUCD Supreme Court does not have jurisdiction over matters concerning alleged violation of university policy. Article VII, Section 2 of the ASUCD Constitution outlines the jurisdiction of the ASUCD Court:

(1). The ASUCD Court shall:

a) Have the ultimate authority to interpret the wording of this Constitution and that of legislation enacted pursuant to this Constitution;
b) Review previously enacted legislation made by the Senate following a written request by any ASUCD member(s);
c) Review complaints regarding the Elections Committee or any other office or body of ASUCD;
The Hon. Del Bohner, Associate Justice of the ASUCD Supreme Court, is Mr. Kevin Power’s roommate. Mr. Kevin Powers is listed as council for the Plaintiff arguing before Associate Justice Bohner. Article VII, Section 6 of the ASUCD Constitution specifically states:

(1) Members may remove themselves from an individual case or be removed by the ASUCD Court from an individual case according to rules and procedures enacted pursuant to this Constitution on the grounds that the challenged member cannot render an impartial and unbiased opinion.

The Defendant requests that Chief Justice Cody remove Mr. Powers as Council, or Associate Justice Bohner as a member of the court for the purposes of this case.

ARGUMENT

IA. DEFENDANT’S USE OF ASUCD SYMBOLS CANNOT BE CONSTRUED AS IMPLYING SUPPORT FOR DEFENDANT’S CAMPAIGN

The main point of this case is whether or not placing the ASUCD logo on the GO slate’s website constitutes, or implies an endorsement. The Plaintiff claims that placing the ASUCD logo on the GO website does constitute an endorsement of the GO candidates by ASUCD. We will argue that this does not constitute or imply an endorsement.

There are two issues:

Does the presence of the ASUCD logo on the GO website construe or imply that ASUCD is endorsing the GO candidates?
Is the presence of the ASUCD logo on the GO website an actual endorsement by ASUCD of the GO candidates?

This section will address the first point. Section IB will address the latter point.

In order to find the answer to the first question mentioned above, we need to determine if a reasonable person would believe that ASUCD endorses GO candidates if he or she sees the ASUCD symbol on the GO website. As an analogy, would a reasonable person believe that the United States of America endorses Hillary Clinton for President if he or she sees the American flag on the Hillary for President website? Would a reasonable person think that the state of California endorses Arnold Schwarzenegger for Governor if he or she saw a California flag on a “Join Arnold” bumper sticker? Or would a reasonable person construe that the Los Angeles Unified School district endorses Jon Doe for School Board if that reasonable person saw the seal of the Los Angeles Unified School District on Jon Doe’s website?

As mentioned in the facts of the case, it is common practice for the US flag or the flag of the state of California to be used in marketing materials for political campaigns for state or federal office. Such use is inarguably for informational purposes only. A reasonable person would not draw the implication that any organ of the United States endorses Hillary Clinton for President if he or she saw the American flag on Hillary’s website. The American flag is the symbol of our nation, just as the ASUCD logo is the symbol of our association.

The Associated Students of UC Davis does not have an official flag to use on campaign marketing materials. But it does have a symbol and according to the Merriam-Webster Online Dictionary, a flag is designed to function as a symbol. There is inarguably no distinction between a flag and a symbol.

Flag: a usually rectangular piece of fabric of distinctive design that is used as a symbol (as of a nation), as a signaling device, or as a decoration.

The ASUCD symbol is analogous to the American flag because the American flag represents not only the United States government, but all public or private institutions that the United States government created. The ASUCD symbol does not just represent the ASUCD Senate, but all 27 units of the association that the ASUCD Senate funds.

The GO slate’s primary function is to run candidates for the ASUCD Senate, the board that allocates ASUCD finances. The GO slate chose to connect voters to the website of the organization it desires to lead by providing a link to the ASUCD’s website. The symbols primary function was a link to a website. It is there to only inform voters in a graphical way. GO could have chosen to use textual links, however, we chose to provide these links in a more visually appealing matter.

Thus, a reasonable person would never construe that ASUCD officially endorses the GO slate simply because the GO slate puts the symbol of ASUCD on it’s website and does not specifically indicate that GO is endorsed by ASUCD; just as a reasonable person would never construe that any organ of the United States endorses Hillary Clinton for President if Hillary Clinton puts the American flag on her website.

Furthermore, the Plaintiff alleges that “the members of the "GO" slate have repeatedly used logos and symbols of ASUCD on their campaign website.” The use of logos and symbols alone are not prohibited anywhere. The Plaintiff does not mention on the WRIT OF CERTIORARI that the use of such symbols is prohibited anywhere. This is the Plaintiff’s job. He only alleges that the use of such symbols implies endorsement. He has failed to point out HOW the use of such symbols implies endorsement. The Plaintiff alleges members of the GO slate used the ASUCD symbols on it’s website, but the Plaintiff does not point out that this is prohibited or HOW this implies endorsement.

IB. ACCORDING TO THE ASUCD BYLAWS, THE FACTS THAT ARE ALLEGED BY THE PLAINTIFF DO NOT CONSTITUTE AN OFFICIAL ENDORSEMENT.

ASUCD Bylaw 401(G) states:

G. An “endorsement” shall be when a Campaign Executive receives the support of a member of the ASUCD or an authorized student organization through a signed agreement on a document titled “Endorsement Form.” In order for the endorsement to be valid, the form must be submitted to the Student Government Administrative Office. Endorsement forms shall be distributed to each Campaign Executive by the Elections Committee.

This Bylaw outlines the definition of an endorsement for the purposes of ASUCD elections.

The Plaintiff alleges that the use of the ASUCD logo or symbol on the GO slate’s website constitutes an endorsement by ASUCD for ASUCD elections. Bylaw 401 (G) is very specific about what constitutes an endorsement, and posting a symbol on a website is not listed as an action that constitutes an endorsement. The only instance when slates or candidates can be endorsed for the purposes of ASUCD elections is when slates or candidates enter into a contractual agreement with an ASUCD member or an authorized student organization. As of October 29, 2007, the GO slate has not received any signed agreement entitled “Endorsement Form” from any member of ASUCD or any authorized student organization. The use of the ASUCD logo or symbol on the GO slate’s website does not constitute an endorsement of the GO slate for the purposes of ASUCD elections according to ASUCD Bylaw 401 (G).

IC. THE PROHIBITION AGAINST USE OF ASUCD SYMBOLS DOES NOT APPLY TO DEFENDANT’S ALLEGED CONDUCT BECAUSE DEFENDANTS DO NOT CONSTITUTE CANDIDATES FOR PUBLIC OFFICE

The WRIT OF CERTIORARI cites ASUCD Bylaw 1601 (B) in the section “Relevant Bylaws:”

B. The terms "ASUCD" and "The Associated Students, University of California, Davis", symbols of the ASUCD, or the name of any body of the ASUCD shall not be used in any way that supports any candidate for public office, in accordance with Article I, Section 6(2) of the ASUCD Constitution, with the exception of self-sufficient media Units.

Here, this bylaw states that the name or symbol of ASUCD is prohibited from being used to support any candidate for public office. This Bylaw further references Article I, Section 6(2) of the ASUCD Constitution, which states that the Internal Revenue Service classifies ASUCD as a 501(c)(3) organization for charitable and educational purposes. As such, ASUCD is prohibited from endorsing a candidate for public office.

However, the GO slate is not running any candidate for public office.

The Plaintiff is alleging that the ASUCD logo on the GO slate’s website implies that ASUCD supports the GO candidates for the ASUCD Senate. By citing ASUCD Bylaw 1601 (B), the Plaintiff is claiming that the ASUCD Senate is a public office.

Merriam-Webster’s Dictionary of Law defines “public office” as:

an office created by a constitution or legislative act, having a definite tenure, and involving the power to carry out some governmental function.

The ASUCD Senate does not have any public office power because it does not have the power to carry out governmental functions. Article II, Section 3 of the ASUCD Constitution states:

The Senate shall have authority over and responsibility for: (1) all ASUCD revenues and their allocations, (2) maintenance, use and title to all ASUCD property, and (3) the development of all policies and regulations necessary for carrying out the duties enumerated in this Constitution and for the smooth and efficient operation of the Association, subject only to the limitations enumerated in this Constitution.

This specifically prescribes the authority and responsibilities of the ASUCD Senate. The ASUCD Senate’s power is primarily financial and custodial in nature. The ASUCD Senate allocates revenues derived from UC Davis student fees and maintains property purchased from these fees. Thus, the power of the ASUCD Senate depends on receipt and collection of these student fees. ASUCD is a non-profit membership organization.

There is no governmental power inherent in the ASUCD Senate. For example, the ASUCD Senate does not have the power to detain any of it’s members. This is a common power associated with any level of government, on the local, state, or national level. Additionally, the ASUCD Senate does not have the power to raise an army or a police force, another common governmental function on the local, state, and national level. And finally, the ASUCD Senate does have the most basic and fundamental power of any governmental organization; the authority to prescribe laws that it’s members must follow and enforce these laws with the threat of punishment, such as the use of force. The ASUCD Senate is a committee of students that allocates a budget derived from student fees.

Given that the ASUCD Senate has no governmental authority, and having governmental authority is a vital component of being a public officer, then ASUCD Senators are not considered public officers. Further, the ASUCD Senate is not considered a public office.

In conclusion, even if the court rules that the act of placing the ASUCD symbol on the GO website does imply that ASUCD supported GO or GO candidates, this type of support would not constitute support of candidates for public office, but rather it would constitute support for candidates running for the ASUCD Senate, a body that allocates the funds of a non-profit, voluntary membership organization with no governmental authority.

As stated in section IA and IB, the posting the ASUCD symbols on the GO website does not construe or imply that ASUCD endorses or supports GO. Thus, Bylaw 1601 (B) does not apply to this case for the above mentioned reason, and additionally because the ASUCD Senate is not a public office.

II. EVEN IF DEFENDANT’S USE CONSTITUTED PROHIBITED CONDUCT, THE ONLY SANCTION AVAILABLE TO THE COURT IS AN ORDER PRECLUDING SUCH FURTHER CONDUCT

It is not the duty of the ASUCD Court to hear this case at this time. Section 601 of the ASUCD Judicial Codes clearly state:

(1) In interpreting the ASUCD Constitution, legislation enacted by the ASUCD Senate pursuant to Article IV of the ASUCD Constitution, and actions by ASUCD officials, and in determining whether such legislation or actions are consistent with the ASUCD Constitution, the Court shall only act in response to:

A. A written complaint filed with the court by any ASUCD member alleging that ASUCD officials have failed to perform the duties of their office in conformity with the ASUCD Constitution or legislation enacted pursuant to the ASUCD Constitution, including complaints that legislation is inconsistent with the ASUCD Constitution. ASUCD Courts shall only proceed to adjudicate a case only after receiving a complaint in written form filed in the Student Government Administrative Office.

It could be argued that this case falls under the purview of the court because of Article VII, Section 2(1)(c) of the ASUCD Constitution, which states that the ASUCD Court shall:

c) Review complaints regarding the Elections Committee or any other office or body of ASUCD;

However, the ASUCD Court only holds appellate jurisdiction over the Elections Committee. The defendants are not aware of any complaint filed against them by the ASUCD Elections Committee. The Elections Committee never informed Lovell, Dreyer, Rosales, Perez, and Kim that any complaint was filed against them. Further, the defendants are not aware that Michael Tucker, the Student Government Advisor publicly posted a progress report of any complaints received by the Plaintiff against the defendants. According to Section 413 (C)(1) of the ASUCD Bylaws state:

A progress report of the investigation shall be publicly released within two (2) academic days from when the complaint is filed.

In addition, the ASUCD Court does not have the authority to issue violation points. The Constitution specifically says that the ASUCD Court cannot sanction a candidate. Article VII, Section 8 of the ASUCD Constitution specifically states:

(1). Complaints alleging that a candidate violated election regulations will be filed with the Elections Committee

(a). The ASUCD Court shall have appellate jurisdiction over elections. The Elections Committee shall retain original jurisdiction over potential disqualifications or violations in elections, but specific questions of law may be appealed to the ASUCD Court. As such, the ASUCD Court cannot sanction a candidate, but the Elections Committee must follow legal precedent set by the Court.

III. CANDIDATE ENGAGEMENT IN ANY MISUSE OF COPYRIGHTED MATERIAL CANNOT BE ASSERTED AT THIS TIME AS THE ASUCD CANNOT VERIFY THEY HAVE OBTAINED THE PROPER DOCUMENTS AND PROCEDURES NEEDED TO TRADEMARK ASUCD LOGOS.

Plaintiff has not validated that indeed the Associated Students has obtained trademark patent and essential copyright for the symbols associated with the student organization. In speaking with the ASUCD Accounts Payable division, the paperwork cannot be found as of Tuesday, October 30th, 2007. Furthermore, the Business Manager of ASUCD is away at this time. If plaintiff puts forward copyright violations, it is required that he provide sufficient evidence to prove there is indeed a relevant copyright and trademark patent therein associated.

Furthermore, under sections 106 of the Copyright Act of 1978 (Title 17 of the United States Code), and reaffirmed in the Technology, Education and Copyright Harmonization Act (TEACH) of 2002, “Fair Use” ordinances provide for the reproduction of copyrighted materials and are therefore not considered an infringement of copyright by use of non-profit educational institutions. GO, being a recognized organization by the University of California, Davis is afforded such protection as a member of a non-profit educational organization.

Because of the fact that the Judiciary does not have the jurisdiction to adjudicate this case, because it has already been rejected by the ASUCD Elections Committee – the sole authority codified to have jurisdiction of such cases, because the plaintiff has failed to show there has been misunderstandings of endorsement by the ASUCD Senate and GO candidates as a direct result of the logos on the site, and furthermore, because of a lack of substantiation by the plaintiff regarding the use of copyrighted material by the GO candidates, we motion to dismiss the case on the very grounds

Respectfully Submitted,

_ _ Eric Friedman Greg Justice Defendant Lead Council

Defendant's Brief for Court Case #43

FILED ON BEHALF ON THE DEFENDANT

Baraona vs. GO Elections Slate Et al. Erick Friedman, Alexandra Frick, Jon Dreyer, Andrew Kim, Becca Lovell, Erika Perez, and Jesse Rosales.

Prepared by: Mr. Eric Friedman, GO Co-Chair Mr. Greg Justice, Lead Council for the Defendant

Prepared for: Hon. Tim Coady, Chief Justice Hon. Russell Manning, Vice-Chief Justice Hon. Del Bohner, Associate Justice Hon. Tiffany Setters, Associate Justice Hon. Ora Sraboyants, Associate Justice Hon. Arie Van Gemeren, Associate Justice Hon. John Wheat, Associate Justice

List of Witnesses:

Byron Dover, GO Website Designer Jeremy Ross, Election Committee Chair Michael Tucker, ASUCD Advisor

Statement of the Facts:

1) The plaintiff argues that “the members of the ‘GO’ slate have repeatedly used logos and symbols of ASUCD on their campaign website, in violation of the above by-laws” (Writ of Certiorari). However, plaintiff does not provide how these have been in violation of the by-laws and simply alleges that these have been in mere violation.

2) The defendants provide a legally recognizable justification for any potential use of ASUCD logos on their site, and it can be seen in the front page disclaimer. (A printout of the website is attached, and the site can be viewed at www.goucdavis.com.)

3) The alleged violation of the logos as provided in the ASUCD By-Law 1601A is in no way applicable because the disclaimer on the GO webpage expressly defines there being no official and legislatively embraced relationship with the ASUCD and GO.

4) The ASUCD Court does not have the power to take this case as expressly codified in Article VII, Section 8, Clause 1a.

5) Furthermore, the ASUCD Court cannot adjudicate any sanction against an elections candidate as codified by Article VII, Section 8, Clause 1a. As expressly codified in By- Law 413, only the Elections Committee can sanction a candidate for alleged violations having found occurred.

Statements on the Facts

It should be noted that as of this submission, we have yet to receive a copy of the plantiffs brief as required by statute.

1 & 2) In the initial Writ of Certiorari / complaint, the plaintiff stated expressly that: “Plaintiff alleges that the members of the "GO" slate have repeatedly used logos and symbols of ASUCD on their campaign website, in violation of the above bylaws. Included in the list of defendants is all candidates on the GO slate, as well as the slate's co-chairs.” The violations this might be referring to can be found in By-Law 1601A which state: A. The terms "ASUCD", and "The Associated Students, University of California, Davis", the name of an ASUCD Unit, or symbols of the ASUCD shall not be used in any way that might be construed as implying support, endorsement, or advancement of, or opposition to, any political, religious, sociological, or economic movement, activity, or program by the entire Associated Students of the University of California, Davis (ASUCD) except by majority vote of the ASUCD Senate in the form of a Senate Resolution.”

Posted on the GO campaign website is the disclaimer stating that “The ASUCD and UC Davis logos are for informational purposes only. GO does not claim to be endorsed by these organizations. We are affiliated with these organizations.” The violation would only occur if GO were to promote an expressed relation between ASUCD and their slate. This disclaimer not only implies, but expressly mentions the campaign is NOT endorsed by the ASUCD, and thus is not in violation for implying alleged support.

3) The GO website has expressly remained within the By-Laws scope as it has in no way published a mutual relationship as defined by By-Law 401 G with the ASUCD, and has not promoted their being a legislatively defined relationship with the association and their slate. It has acted upon the best judgment and with reasonable consideration to not express a relationship; thus, a reasonable constituent cannot assume from the disclaimer or the logos that a express relationship exists between the two entities.

4) As Codified in the ASUCD Constitution in Article VII, Section 8, Clause 1a, only the Elections Committee has the power of “original jurisdiction” over all elections related cases, and not the ASUCD Court. The Court is merely granted appellate jurisdiction on the grounds that this case has been directed by the Elections Committee to ASUCD Court. AS of this submission, the Elections Committee has not heard or adjudicated a case involving elections violations by the GO campaign or its candidates. Thusly, the Court is overstepping its jurisdiction and committing an unconstitutional act by taking this case.

5) Lastly, the Court, even if having received this case through its constitutionally defined appellate means, does not have the power to levy any judgment against election candidates if found guilty in an alleged violation. The ASUCD Constitution in Article VII, Section 8, Clause 1 a-c expressly permits only the Elections Committee –under the direction of the Students Judicial Affairs division – to levy potential sanctions against candidates.

Because the court does not have the jurisdiction to take this case, and because the plaintiff has failed to prove through a missing brief that GO slate expressly promoted a false relationship between ASUCD and GO, we ask the Court dismiss this case on the grounds as stated in this brief.

Comments:

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2007-11-14 14:32:42 Are Steven Ostrowski and Ronald Payne Lawyers? —PxlAted

I helped with the writing and some of the discussion but I won't be able to be there because of work. Steve will take charge of most of work at 8pm, which I find a bit ironic. We often joke as to what side the LEAD crowd will be on in the room. Steve considers this to be the first of three steps he will use to get rid of the GO organization. Steve has asked me to convey that he will allow other individuals to support his side, even those among LEAD. —RonPayne

2007-11-14 14:56:46 Not that I think GO is in the right (I would have been added as a plaintiff if #42 went forward), but your arguments are weak. You are making a copyright argument which is inappropriate for this situation. Fair use is indeed a compelling response to a copyright argument in this case. Mitigating is the fact that the use is non-commercial and does not in any way harm the market for the work. Aggravating, of course, is the fact that the work is reproduced in its entirety. You could argue for the nature of the work as an additional mitigating factor. It is neither bought or sold. The mitigating factors far outweigh the aggravating factors. Everything is fine under copyright law. No infringement occurred. Never mind that the court can't try copyright claims.

The proper way to approach this case would have been under a trademark argument. ASUCD uses the mark to identify itself. ASUCD has bylaws that govern the use of its marks, registered or not. The bylaws do not allow GO's use. The case should have sought a finding of fact that GO's use of the ASUCD logo is inconsistent with the bylaws and is thus unauthorized. Additionally, the case should have sought a writ of mandamus to some competent authority in ASUCD to issue a cease and desist notice to GO. If GO did not comply with the order, ASUCD could then file suit against GO in a real court and get an injunction.

If the case did get to a real court, GO would be pwned. They used the full color logos without authorization of the rightholder in a non-illustrative and non-parodic manner. The nominative use defense would fail here because they did not adhere to the principle of minimal use. That is to say, by using the logos, they intended to establish their informal affiliation with both ASUCD and the university. They have amended their website to state as much since the ASUCD Court cases were filed. A sentence explaining that GO is an ASUCD slate at UC Davis would convey the same information. Yet, GO chose to use the trademarked logos anyway, even when they were unnecessary to convey affiliation. Thus, the use of the logos was unnecessary and would be ruled to be infringing.

I really should have written that amicus I was planning on writing. :( —WilliamLewis

Thanks a bunch for all of that information. We admit that some arguments are weaker than others but we will advise the ASUCD Senate to take this to Court if GO does not subsist. Steve, however would like GO to dig their own graves so he hasn't mentioned that yet. —RonPayne

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