May 22 2013

With Equal Rights Comes Equal Responsibility

You would be hard pressed to find anyone more in favor of equal rights for gay men and women than yours truly. But I am completely dumbstruck at the outrage expressed over the arrest of Kaitlyn Hunt, an 18 year old girl from Florida, who was charged with lewd and lascivious battery of a child when it was revealed that she had a sexual relationship with a 14 year old schoolmate. Since her arrest a few months ago, Kaitlyn’s parents have somehow turned her case to a gay rights issue. Kelly Hunt Smith, Kaitlyn’s mother, created a Facebook page to gain support for her daughter in an effort to get the charges dropped, the station says. The page, entitled “Free Kate,” had over 30,000 members as of early Tuesday. Smith posted on the page that the girlfriend’s parents “conspired with police to entrap Katilyn” because they disapproved of the relationship. A similar petition on Change.org was set up by Kaitlyn’s father, Steven Hunt, and has more than 56,500 supporters calling for prosecutors to drop the charges. Steven Hunt claims his daughter’s relationship with the 14-year-old girl was consensual and that the girlfriend’s parents went to police because they blamed Katilyn for their child’s homosexuality, according to local news reports.

marriage equalityI don’t get it. You couldn’t get 5 signatures on a petition to free a young man accused of having a sexual relationship with a 14 year old girl. Trust me, I have stood next to many young men over the years accused of such conduct. Pages of love letters from the complainant attesting to her love for the defendant and her desire that he not be jailed or even prosecuted fall on deaf ears of prosecutors in NY. Because in NY, as in Florida, sex crimes involving children under the age of consent are strict liability crimes – it does not matter if you had the girl’s permission or if she was the one who initiated the sexual contact. Here in NY its called Statutory Rape or Sexual Abuse. In NY, though, if the complainant is older than 14 the defendant has to be more than 4 four years to make it criminal. Florida’s law says any person 18 or older who engages in sexual activity with a minor between the ages of 12 and 16 commits the crime of lewd and lascivious battery. “The idea is to protect people in that vulnerable group from people who are older, 18 and above,” Bruce Colton, state attorney for Florida’s 19th circuit, said, according to the station. “…The statute specifically says that consent is not a defense.” Colton said prosecutors will not drop the charges based on the public petition. He said this case exemplifies the purpose of the current law and added he would not support any effort to make consensual relationships among peers legal, the station reports: “There’s a big maturity difference between them,” he said. “You’re talking the difference between a senior in high school and a freshman in high school. That’s what the law is designed to protect.”

So therefore, the law must be applied equally. It would be unfair to the many men and some women, past present and future, charged with similar crimes if the parties’ sexual orientation somehow made what the legislature decreed illegal, legal. As gay rights properly gains national attention and the mood of the nation moves slowly but steadily toward tolerance (if not quite all-out acceptance), I think it hurts gay rights to try and make this case a gay-rights issue. It’s hard to ask for equal treatment and special treatment at the very same time.

May 19 2013

Entering the “Revenge Porn” Fight

The capacity of the internet to inform, entertain and frankly change the world is evident. But like all technology, it can be used by small-mind people to advance hurtful causes or just be plain rude. Last month or so, I was contacted by a young woman who wanted my help in getting pictures of herself that she had sent to her boyfriend off a “Revenge Porn” site. She and her now ex-boyfriend had engaged in a little friendly “sexting” where they would send risque pictures of each other via phone. After the break-up he posted them on a site called Texxxan.com. She had trouble finding out the site’s owner and did not know how to get the pictures off the web.

That led me to a search for information about this new topic which led me to Holly Jacobs. Holly is the literal “poster child” of this newest cyber-epidemic. For more than four years, she was stalked and harassed by an ex boyfriend who kept posting personal and nude photos of Holly on Revenge Porn sites. At first , horrified and embarrassed, she kept the problem to herself until it got too big to deal with and she could ignore it no longer. Then she decided to go public with the issue and start a campaign to change the law in her home state of Florida to make it harder for websites to make money off Revenge Porn imagery. She also started a great website devoted to the topic called EndRevengePorn.com. The site has lots of useful information on the topic and links to lawyers in several states who have agreed to help victims on a pro bono or reduced fee basis. I spoke at length with Holly the other day and was amazed at her courage and tenacity. I gladly offered to add my name for victims in NY to call and consult on how to rid themselves of this problem.

The main issue is that the Digital Millennium Copyright Act (DMCA) and the Communications Decency Act (CDA) protect websites and third party webhosts who allow folks to post content on their site. They have no obligation to check if the material is copyrighted or violates any privacy rights of the individuals shown in the content. Their only obligation is to take down the content once someone files a takedown notice with the third party, claiming ownership of the content or some other form of intellectual property violation. Then the person who posted it has to establish their right to the material or it stays off the site. So Holly is hopeful that the laws can be modified to make it illegal to post revenge porn and to make the web hosts responsible if they had reasons to believe the content is protected or if they get repeated takedown notices. Understand that these sites (through advertisements) are making good money off these images and videos. And many of them know exactly what they are doing and what is being posted. So that’s not really what the DMCA and CDA were designed to protect. But as someone who represents a lot of web-based companies, I am a big fan of the protection afforded by the DMCA and the CDA so while I fully support Holly in her pursuit, I am hopeful that changes can be made without throwing the baby out with the bathwater.

In thinking about the issue further, I decided that I would rather focus on helping the individual victims rather than trying to make a wholesale change to internet law. This issue is really not far from topics I have been involved in for years. I am the founder of The Law Squad (www.thelawsquad.com), a not-for-profit speaker’s bureau that travels to high schools throughout Long Island bringing judges, law enforcement personnel, legal experts, drug and mental health counselors and others to the schools to talk to teens and their parents about new issues that young people are confronting everyday. While the topics are very varied – prom issues, social host laws, teen driving- many schools have asked us to present a seminar on “cyber-bullying.” This is the use of the Internet and related technologies to harm other people, in a deliberate, repeated, and hostile manner. As it has become more common in society, particularly among young people, legislation and awareness campaigns have arisen to combat it. So Revenge Porn is merely just cyberbullying taken to a whole new level. Additionally, my digital image website (www.extortionletterinfo.com) helps folks combat Getty Images and other media companies who are trying to extort exorbitant fees for minor use of copyrighted imagery, in a process called “copyright trolling.” So trolls plus bullies sure sounds like what these losers are doing on Revenge Porn sites.

So together with Matthew Chan (who developed the extortionletterinfo site) I am launching FightRevengePorn.com. The site will provide resources and information on how to combat this growing problem. Matt will handle ideas and solutions on the “cyber” side of the issue while I will do so on the “legal” side of the issue. The legal premise to fighting them is pretty straightforward. For “self-shots” taken by the people in the picture, they would be the ones who own the copyright to the image. But even where the picture or video was taken by the ex-BF, the folks shown in the picture have their own rights. First of all, chances are they agreed to be in the picture just so the recipient could have it for themselves, not to publish to the world at large. Second of all, each state has its own right to privacy/right to publicity laws which protect people form the commercial exploitation of their face and image. So takedown notices would work to get them off the sites, which is the immediate problem. Then the poster must be pursued through litigation to get him to understand that this will not be tolerated any further. Depending on what other behavior accompanies the posting of the pictures, criminal prosecution may even be possible. When we developed the digital image site, many others became regular contributors who came up with many creative and workable solutions to that problem. I expect a dialogue similar to that will occur on this new site as well.

I want to thank and credit Holly Jacobs for taking this fight to the public and for being willing to put her face and name out there so that other victims can feel less ashamed and more willing to combat their bullies and trolls. For more information on this topic, please visit EndRevengePorn.com and FightRevengePorn.com. Thanks.

Apr 29 2013

UK Law Will Harm Photographer’s Rights

My friend Robert Krausankas of copyright-trolls.com sent me a link to an article about a new UK Copyright law that could have a devastating impact on photographers’ rights. The new Act(called the Enterprise and Regulatory Reform Act, which received Royal Assent) states that all “orphaned works” can be used for free by anyone. An orphaned work is any creative work (not just photos) whose authorship cannot be attributed with due diligence. Since that will rarely happen to films, TV shows, recorded music, and such other works of art, this law will have its greatest immediate impact on digital photography. The article, called “IS the UK Government Trying to Kill Off Photographers?,” can be found at photothisandthat.co.uk.

Imagine if I re-post a digital image sent to me by a friend of mine but I do not attribute it to anyone, and a third party sees it and likes it. If I don’t respond to that third party’s requests about who owns the copyright in the photo, that image could be considered an “orphaned work.” That third party could then use it on a website, a TV commercial or however they see fit. Considering the millions of images uploaded without attribution or connection to the copyright holder, this could cause UK photographers to lose valuable copyrights.

Particularly frustrating for photographers is that many social media websites strip away the metadata imbedded in the photo which shows the authorship. Even watermarking the image only affords some protection as that can be deleted or cropped out and then re-posted and found that way by a third party with no knowledge of the watermark or metadata.

copyright logoWhat’s unusual about this bill is that UK copyright law already favors a person who used a work of art innocently – UK copyright law states that the only recourse against an innocent infringer is that they must cease and desist from use of the work and that the copyright holder is not entitled to damages. So why make it even harder for artists to protect their work?

I have been fighting digital image warehouses like Getty Images for the past five years over their extortionate, threatening letters to innocent folks who did not know they were infringing on anyone when they used an image put on their website by some web developer they hired or bought from a website template company. I have often lamented on the site extortionletterinfo.com for protection for US innocent infringers like the one in the UK Copyright law. (Here, even innocent infringers are subject to a damages claim). But this goes too far. At the very least, the law should include a provision that only the copyright holder can delete metadata they inserted to establish authorship. The author of the UK article, Edmond Terakopian, suggest this as well. He also asks UK citizens to fight the passage of the Act by contacting Members of Parliament who have to vote it in before the Act can become Law. Will this is an admirable plea, it appears futile as he also reports that no Act which receives Royal Assent has failed to become legislation since 1979.

Many US photographers have their works published abroad and hold copyrights in the UK. They would be wise to register their images in the UK Copyright Office as further protection against losing their rights do this unnecessary and overbroad piece of legislation.

Apr 20 2013

Read Dzhokar Tsarnaev His Rights, Get Him a Lawyer, Try Him Fairly and Publicly, Then Convict Him and Throw Away the Key

The argument is raging on all the news channels. Do we have to read Dzhokar Tsarnaev his Miranda rights? Sen. John McCain and others are insisting that he can be treated as “an enemy combatant” or that the “public safety” exemption can be applied. While I disagree that both premises are valid, that’s not the point of this blog post. I’ll concede for purposes of this article that a reasonable argument can be made that Tsarnaev is not entitled to these rights because he is a terrorist, but the issue is Why?

FlagLast time I checked, the rap on why terrorists do what they do is the they “Hate our way of life,” they “Hate our Freedom.” The Constitutional rights we give to criminal defendants is integral to our way of life and principal to our freedom from government over-reaching. Tsarnaev is an American citizen who committed a crime on American soil. He should be given all the rights granted to us in the Bill of Rights. If these rights can be taken away from him how can we guarantee that they won’t be taken away form another person who commits a crime here with some connection to a foreign interest. (not that there’s any evidence yet released that Tsarnaev’s crime was connected to a foreign interest). In addition to the talking heads, many folks (including friends of mine) have posted on Facebook that they can’t believe we will have to spend money to try a him and get him a lawyer, etc. He should have been shot in the boat, he should be hung from Copley Square, he should be made to join his brother, etc etc. But there’s a lot more to the true American way of life than gorging on food court meals in some Mega Mall. Many of the people who are making these posts are the same ones who hold the Founding Fathers as omniscient demi-gods whose original words must forever be the guiding principles of our society. Well, these rights were in their top ten list. Criminal defense rights make up a significant part of the Bill of Rights. Because Adams, Jefferson and Franklin all realized that the government’s greatest power is the ability to lock up those who may oppose its positions or speak up against its policies. They carefully crafted a series of protections to insure that those accused of crimes had written guarantees to create a system that protects the innocent and provide fairness even to the guilty. We stop upholding those principles, or choosing when and where to apply them and the terrorists win. With each right we remove or weaken we will become more like the tyrannical countries or regimes or regions they come from.

But enough waving of the flag, there is also a practical reason to treat Tsarnaev like any other criminal defendant. Why give him an issue for appeal? Let’s face it, this guy is toast. The evidence against him is clear and overwhelming. You can resurrect Clarence Darrow and it won’t help him. Sure we would love to get some information from him, but is it worth doing at the risk of giving him an appellate issue? His lawyer will probably try to work out a deal where he gives information in exchange for life without parole instead of the death penalty. We can argue whether that’s a good deal in a later post. My point here is this case is one the world will be watching and where our system will be put to the test. Let’s pass with flying colors, let’s show the world that we put our money where our mouth is. A fair public trial, with all the rights afforded by the Constitution will say more about our American way of life and our resiliency than a thousand “Boston Strong ” memes will.

Apr 09 2013

NH Jury Orders Exxon to Pay $236 Million in Gas Additive Lawsuit. Exxon Says ” Yeah, We Make That in About Two Days.”

OK – so Exxon did not say that, but its true! The jurors reached their verdicts in under two hours, even though the trial took nearly three months. According to the Associated Press, lawyers on both sides were stunned by the speed with which they reached the verdict on liability and even more stunned when the jurors took barely 20 minutes more to fill out the damages verdict. The panel awarded the state all $236 million it was seeking to monitor and remediate groundwater contaminated by MTBE. The chemical was added to gasoline to reduce smog but was found to travel farther and faster in groundwater than gasoline without the additive. The jury found damages in the amount of $816 million, but that award was reduced to 28.9 percent of the total — reflecting Exxon’s market share of gasoline sold in the state between 1988 and 2005.Exxon will of course appeal. In 2009, jurors awarded the New York City Water District $105 Million in its case against Exxon Mobil over MTBE contamination but that case is still on appeal.
Exxon
While this is a huge success, and credit should be given to the San Francisco law firm Sher, Leff that brought this and the NYC case, the case still tells of the risk, danger and hurdles in bringing such lawsuits against such large companies. Certainly few or no private citizens or companies could take these claims on, so States must be the plaintiffs. Then, even when you win after a lengthy trial, you face a lengthy appeal process. In a three month trial over a complicated issue, there is certainly the possibility of error that brings the case back. Exxon for example is likely to argue that they presented evidence that more than 300 junkyard and gas station owners not named in the lawsuit were responsible for much of the contamination. In an AP news release about the verdict Exxon lawyer David Lender stated “We appreciate the jurors’ service during this long trial, but erroneous rulings prevented them from hearing all the evidence and deprived us of a fair trial.” At trial, a financial analyst testified that the $236 Million would represent approximately two days worth of Exxon Mobil’s profits. So that puts the big number in perspective when you wonder whether it would be and deterrent against doing the very same thing with another product in the future.

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