Nov 19 2014

US Court Deduces That Sherlock Holmes Is Now Public Domain

A US Federal judge has ruled that iconic literary character Sherlock Holmes and the most familiar elements of his stories are in the public domain.  But what’s as important is that  in a strongly worded opinion the court criticized the Arthur Conan Doyle estate for its troll-like practices.

It’s the third time an American judge has found in favor of the case brought by Holmes scholar Leslie Klinger in 2013. This time however, he was also awarded nearly $70K in legal fees.

The Conan Doyle estate has maintained that because of that , people who create any stories featuring the character must pay a licensing fee, based on the copyright of the last stories. But it’s a copyright, not a trademark – meaning that the copyright of the initial characters should be established by the date of their FIRST publication not their last. Only the newer elements – characters and certain plot devices perhaps that appear only in the LAST stories shoud get the protection unitl 2023.

Holmes and Watson  Free at Last!

Holmes and Watson
Free at Last!

Klinger coedited a pending anthology of new Holmes stories  with Laurie R. King. The anthology, coming from Pegasus, collects new stories inspired by (and including) Sherlock Holmes from writers like Michael Connelly,  Harlan Ellison and  Jeffery Deaver among others. They contain no elements or characters from the last ten stories. The Conan Doyle estate contacted publisher Pegasus and stated that if it weren’t paid a licensing fee, it would take steps to block the book’s distribution. Here is an excerpt from their cease and desist letter:

“If you proceed … to bring out [the book] unlicensed, do not expect to see it offered for sale by Amazon, Barnes & Noble, and similar retailers. We work with these compan[ies] routinely to weed out unlicensed uses of Sherlock Holmes from their offerings, and will not hesitate to do so with your book as well.”

 

 

Klinger decided to go on the offensive and bring a declaratory judgment action against the estate, arguing that Sherlock Holmes and the other familiar elements of his stories — trusty sidekick Dr. Watson, arch-nemesis Dr. Moriarty and  the sleuth’s  famous address at 221B Baker Street — should all be free to use.

Klinger has been on a roll. In December 2013,  U.S. District Judge Ruben Castillo (Chief Judge of The Northern District Court of Illinois) found in favor of Klinger. Then,  in June 2014, Judge Richard Posner (of the 7th Circuit Court of Appeals, covering Illinois, indiana and Wisconsin) sided with Klinger in the Estate’s appeal of Castillo’s ruling.

And now, Posner has issued another opinion awarding Klinger more than $69,000 in legal fees while sharply criticizing the business practices of the Conan Doyle estate, calling them “disreputable.”

“The Doyle estate’s business strategy is plain: charge a modest license fee for which there is no legal basis, in the hope that the ‘rational’ writer or publisher asked for the fee will pay it rather than incur a greater cost, in legal expenses, in challenging the legality of the demand. The strategy had worked … only Klinger (so far as we know) resisted. In effect he was a private attorney general, combating a disreputable business practice — a form of extortion — and he is seeking by the present motion not to obtain a reward but merely to avoid a loss.”

My battles with copyright trolls are well-known ( at least in my close circle of friendsand clients). I am the legal advisor to the site ExtortionLetterInfo.com (ELI) which chronicles copyright trolling behavior and offers a vibrant discussion forum where troll victims can find solace and solutions. ELI and I have often been vilified in public and in private by our adversaries for using the word “extortion” to describe trolling tactics. To see the word used by a Federal Appellate Judge in a published opinion warms my lawyer’s heart and makes me feel vindicated.

Trolls suffered another defeat last month when Federal Judge Thomas Rice ruled that high statutory damages in cases involving minimal infringement would amount to “excessive fines” prohibited by the 8th Amendment to the Constitution. In that case, film copyright owners brought a massive number of suits against folks who downloaded their films via BitTorrent. Many downloaders did not answer and the plaintiffs entered default judgments against them. in deciding the damages to award to the plaintiffs, Judge Rice rejected their request for $30K  in damages for each defaulting defendant and $23K in legal fees in total. Instead, Judge Rice awarded $750 in damages (the statutory minimum) and only $2,500 in legal fees stating taht these numbers were more proportional to the wrong done by the defaulters. This is an argument that ELI and I and other similar sites like FightCopyrightTrolls.com and DieTrollDie.com have been making for years. To see this recognized in a Federal opinion is also a huge victory. It’s an early Christmas for troll-fighters!

I will certainly be citing and referring to these two strong opinions in my future troll defense cases. As for Holmes, Watson and Baker Street, they’re now free for the world to use.

Nov 06 2014

Fishy Case Makes SCOTUS Question Feds Prosecutions

The US Attorney’s Office took a beating in oral arguments before the Supreme Court yesterday over a case involving illegal fishing. The case shows how the Office often stretches the language and meaning of criminal statutes to cover actions that were never meant to be covered by the statute.  I have never been a fan of criminal statutes that get named after somebody  as they are usually a reaction to one particular criminal event and then get used to encompass a whole set of other events that have nothing to do with the original crime. While that scenario usually applies to laws named after victims of  horrific crimes, its also applicabel to laws named after the Congressmen who passed them.

The case I am talking about involves a ludicrous application by the US Attorney’s Office of a particular section of the Sarbanes-Oxley Act, passed to fight corporate fraud after the Enron Scandal. The Sarbanes–Oxley Act of 2002, also known as the ‘Public Company Accounting Reform and Investor Protection Act’ (in the Senate) and ‘Corporate and Auditing Accountability and Responsibility Act’ (in the House) sets new or enhanced standards for all U.S. public company boards, management and public accounting firms. The sections creating criminal penalties for corporate fraud including manipulation of records to avoid or obstruct prosecution, were made particularly severe but were not limited to public companies, justbusinesses”  

Section 1519 of the Act states:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both. 

As you can see this language is very broad and sweeping. It doesn’t just cover public companies, it doesn’t just cover corporate fraud; it covers anyone destroying any “record, document or tangible object”  with the intent to obstuct a prosecution by any Federal agency. A recipe for trouble that snared a local fisherman in the govenrment’s net.

These guys could get you 20 years in jail .  Photo Courtesy of fws.gov

These guys could get you 20 years in jail .
Photo Courtesy of fws.gov

A fish-and-wildlife officer found 72 grouper that appeared to be less than the 20-inch minimum size limit on John Yates’s commercial fishing boat  The game officer issued the fisherman a civil citation and ordered Mr. Yates to bring the fish back to port. Instead, Mr. Yates told his crew to throw the fish overboard and replace them with bigger fish that met the size requirements, according to the complaint. Yates was arrested and charged with violating Section 1519 of the Sarbanes Oxley Act.  After all, the government alleged, he “destroyed” “tangible objects” “with the intetnt to impede” “the investigation” “of a department or agency of the United States.” He was convicted and sentenced to 30 days in jail and five years probation.   The appeal went up to the Supreme Court and was argued yesterday. While all the judges had questions for Mr. Yates’ lawyer (except Justice Thomas of course), those questions were relating to elements of statutory construction. In other words, was the term “tangible objects” limited by the two terms in front of it: “record” and “document” so that Congress meant “tangible objects” like record or document or did “tangible object” maintain it its normal meaning – anything you can touch. But the judges reserved their principal tounge-lashing for the government.

While they focused a great deal about the intent of Congress in passing the bill, the really interesting exchange came when Justice Scalia and Justice Ginsburg talked about the potential 20 year sentence the statute contains. The Justice was very aware that federal judges have broad sentencing power and appellate courts have very limited review of that power if a judge sentences a defndant to a sentence that is contemplated by the statute.  So Scalia was worried about the exercise of prosecutorial discretion in this case to bring the complaint under Sarbanes Oxley (with its 20 year penalty) as opposed to other Federal criminal obstruction-of-justice statutes which usually have 5 year maximum penalties. The exchange forced the US Attorney arguing the case to reveal a dirty little secret of the government’s operation – in deciding to prosecute they are told to seek the statute that provides the greatest   penalty to the defendant. So first Scalia deflected the AUSA Roman Martinez’s argument that its Congress who decided to put 20 years onto the statute nothis office:

JUSTICE SCALIA:  No, I’m not talking about Congress.  I’m talking about the prosecutor.  What kind
of a mad prosecutor would try to send this guy up for 20 years or risk sending him up for 20 years?
MR. MARTINEZ:  Your Honor, we did not ask for 20 years in this prosecution.  And let me try to explain . . .

That led to the following exchange between Justice Ginsburg  and Martinez:

JUSTICE GINSBURG:  You charged two offenses . . .  Is there any guidance that comes from  [The Department of] Justice to prosecutors?  I mean, the code is filled with overlapping offenses.  So here’s a case where the one  statute has a 5 ­year maximum, the other 20.  The one that has the 5­ year clearly covers the situation.
Is there anything in any kind of manual in the Department of Justice that instructs U.S. attorneys  what to do when there are these overlapping statutes?

MR. MARTINEZ:  Your Honor, the ­­my  understanding of the U.S. Attorney’s Manual is that the
general guidance that’s given is that the prosecutor should charge ­ once the decision is made to bring a criminal prosecution, the prosecutor should charge the ­­ the offense that’s the most severe under the law.
That’s not a hard and fast rule, but that’s kind of thedefault principle.  In this case that was Section 1519.

 

So the government doesn’t choose the statute that most closely fits the crime – rather it chooses the staute that gives the defendnat the most exposure to jail time. That rightfully sent Scalia off in a tizzy:

JUSTICE SCALIA:  Well, if that’s going to be the Justice Department’s position, then we’re going to have to be much more careful about how extensive those statutes are.  I mean, if you’re saying we’re always 9 going to prosecute the most severe, I’m going to be very careful about how severe I make statutes.

MR. MARTINEZ:  Your Honor, that’s ­­. . .

JUSTICE SCALIA:  Or ­­ or how much coverage I give to severe statutes.

The Court spent much of the balance of the argument mocking the government’s position that Sarbanes-Oxley was meant to cover such cases, asking about picking daisies in a National Park and then throwing them away as park ranger approaches for example. Justice Kennedy joked that perhaps the statute should be changed to the Sarbanes Oxley-Grouper Act.

While the Court showed clear distaste for the application of this langauge to these facts, criminal practitioners know that these types of cases are heard in courtrooms every day.  Prosecutors – especially Federal prosecutors- have incredible power to wield a 20 year count over a defendant’s head by charging them with obscure statutes never meant to cover the conduct alleged. That’s part of tye reaosn so many cases end inpeas. Credit goes to Mr. Yates for having the courage and tenacity to stare down a 20 year sentence and take his case to trial and all the way to SCOTUS. Hopefull the oral argument inthis case will shed some light on the Dept. of Justice’s misguided policy and have DOJ instead look to exercise its discretion to find the law that most closely fits the cirme.

 

Text of the full argument is here:

http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-7451_4gd5.pdf

 

 

Nov 03 2014

Appeals Court Recognizes First Amendment Rights of Professor to Complain About Treatment of Adjuncts

In case you haven’t noticed, the First Amendment has been taking a beating on college campuses. More and more schools are placing limits on what activities  students and professors can engage in. Private and public universities are holding students and professors to “codes of conduct” that in many ways limit their rights to free speech. The University of Minnesota for example, warned students about offensive Halloween costumes. The University of North Carolina took it one step further, admonishing students that satirical flyers making fun of school-issued flyers that warned students not to wear offensive Halloween costumes was “unprofessional.”   On a more serious note, Montclair State University  penalized the Montclair Students for Justice in Palestine  organization five percent of its semester budget and ordered the group to cease all political activity after receiving complaints that the group had handed out “political” and “offensive” pamphlets; the group was also admonished that it was only to focus on Palestinian culture and not to take positions on political issues. (One wonders how you can focus on Palestinian culture and not discuss political issues). More examples of the restriction of free speech rights on university campuses are documented on the excellent website thefire.org.

So any victory for the First amendment in academia is noteworthy.  Friday, the U.S. Court of Appeals for the Seventh Circuit overturned a   lower court’s dismissal of Adjunct Professor Robin Meade’s lawsuit against Moraine Valley Community  College in a decision that will be helpful for adjunct professors throughout the Seventh Circuit’s jurisdiction, which includes the states of Illinois (where Moraine Valley is located), Indiana, and Wisconsin.

Professor Meade had the audacity to write to the League for Innovation in the Community College about her employer. Meade, an adjunct faculty member at the school, leveled multiple charges at the college regarding its poor treatment of adjuncts. These practices, she charged in the letter, harmed the school’s students.  Two days later, Moraine Valley fired Meade sending her a written notice explicitly citing Meade’s letter as the reason for its action.

Blind and occasionally fickle

Blind and occasionally fickle

Meade filed a Federal Civil Rights claim against the school which the lower court dismissed. The judge below ruled that Meade’s letter was addressing her private concern about her job and not written to address a public interest at large.  Furthermore, the lower court held, the State of Illinois is an “at will” state so Meade had no right to a job and therefore no property interest to protect. In dealing with the latter issue, the Seventh Circuit held that because Meade had already been given a schedule of classes for her to teach , office hours, etc., that was a protectable interest.  In dealing with the former issue, the court held that merely because Meade might benefit from a change in policy or that she was personally subject to some of the policies she deemed wrongful did not mean that her letter was purely personal or that it did not address matters of public concern. The court noted that she wrote the letter in her capacity as president of the Moraine Valley Adjunct Faculty Organization, the union representing adjuncts at the school. It held that it could not be seriously disputed that the objective or overall point of the letter was to address matters of public interest.

This decision is a welcome acknowledgement that folks don’t lose their First amendment rights when they decide to go into academia.  Of course, you would expect the exact opposite to be true.  That is, that institutions committed to broadening the minds of our nation’s young people would be more careful in limiting their professors’ rights to be heard and to address matters of concern at their own school. Professor Meade now gets her day in court to prove her case and speak her mind.

Oct 23 2014

Beware of Beautiful Hawaiian Beaches -You May Get Sued!

Hawaii has some of the most beautiful beaches in the world. Capturing a breath-taking view of one really requires being in the right place at the right time.  And no one has been in the right place at the right time more than Vincent Tylor (Note: Vincent Khoury Tylor is the father of Vincent Scott Tylor- both are Hawaiian Photographers) (We’ll call them collectively “VT”). VT has made a career of taking and selling his scenic photographs of Hawaiian beaches through his own websites like HawaiianPhotos.net and HawaiianPictures.com. But the Internet has produced a secondary career for VT who  – copyright infringement litigator. The ability to search for and locate digital imagery through the Internet has opened up a cottage industry for VT where he sends out cease and desist letters with large demands against alleged infringers and on occasion he then files suit against them in his home state of Hawaii.  I have recently become involved in two such lawsuits filed in Hawaii against folks who allegedly used VT’s images on their websites. I will not discuss their individual cases here of course, but I will share what I have learned from my involvement in them.

copyright logoWhat VT Does Right 

Let me start by saying what I feel VT does right.

(1) He registers the images with the Copyright Office. He also does so in an organized fashion that makes it relatively easy to find the registration for the particular image. Copyright in an image attaches the minute the photographer snaps the picture and there is no legal requirement that you register the image in order to obtain the copyright in the image. Generally speaking, you took it, you got it. But registering the images allows VT to easily prove that he is the owner of the image and allows him to seek statutory damages and legal fees should he win a lawsuit over the use of the image.

(2) On his sites, he watermarks the images so that it is further easy to prove ownership and if someone removes the watermark (or content management information as it is legally known) that creates a second claim or cause of action against that person.

(3) He hired an experienced well-known lawyer in Hawaii – J. Stephen Street – to process his claims. His lawyer knows his way around a courthouse and knows copyright law. Too often, folks on both sides of an infringement suit don’t hire someone well-versed in copyright law or in litigation. They call the lawyer who set up their company or helped them incorporate or did their business lease. You need a lawyer who knows intellectual property law litigation in general and copyright law specifically. I have spoken and dealt with Street and he is professional and knowledgeable. While I don’t see eye-to-eye with him on a lot of things, our conversations have been courteous and productive. I can’t always say that about the lawyers that handle these digital image copyright infringement matters.

(4) VT takes beautiful and professional pictures of Hawaii.

 

What VT Does Wrong 

(a) Asking too much. VT’s demands both in his letters and through his litigation ask for damage amounts that I believe exceed what he would recover in a court of law. I have discussed this with Mr. Street and we have agreed to disagree on this issue. I recently represented a photographer whose business is similar to VT except his island of choice is Granada.  He found a travel agency that was using his images without license. He hired me to send a cease and desist letter. Luckily, the target company hired qualified IP counsel and we settled the case quickly for a fair amount. We didn’t try to scare anyone into overpaying for the images. Asking for a rational amount based upon the use made of the image and the guilt of the party (was it intentional, where did they get the image from, did they re-sell the image etc) is the best way to a quick resolution

(b) Suing in Hawaii. Without getting into too much legalese, before you can file suit in a certain State, you have to show that the defendant has sufficient “minimum contacts” with the State so as to allow them to be hauled into court in that State. In the two cases I am handling, I feel the connection to Hawaii is thin. Of course, Mr. Street would disagree with me. But to even argue that, they then have to get Hawaiian counsel and fight the case until they can convince a court that they are right. The time zone difference also adds to the difficulty in dealing with the case. This added expense and pressure is unfair if the party really has no ties to Hawaii. We’ll see if the court agrees with me or Street.

 

Added Note of Caution about “Free Wallpaper and Free Images” Sites:

If you do a reverse image search on Google for just about any VT image, you will find it on dozens and dozens of websites propounding to provide “free images” or “free wallpaper shots.” This is where many VT’s targets get their images from. People believe that when a site says something is “Free” its “Free.” But the site does not own the images and has no legal right to sell them. Incidentally, using an image from a free wallpaper site as a banner for your website which advertise  your business is not “wallpaper.” For a time, on ELI and in other places, there was speculation that VT was “seeding” his images onto these sites in order to entrap or ensnare folks into using them and to then make them targets of later suits.  Having been involved in this issue for some years now, I can state that no proof of any such seeding has ever been found. Street also demonstrated to me the many attempts VT has made over the years in trying to get “Free Wallpaper” and “Free Images” sites to take down VT’s work. It’s like playing “Whack-A-Mole” – you knock one down another pops up instantly.

 

What’s All This Mean? 

It means that if you intend to use an image of a Hawaiian beach, chances are its VTs unless you go old school. It means that you cannot assume that just because an image is labeled as “free” that you can use it without a problem.  It means that chances are if you want to use a picture of a Hawaiian beach you will have to pay for it now or later. Or else you could find yourself saying “Aloha” to a judge in the Federal Court for the District of Hawaii.

 

 

Oct 13 2014

UK Revenge Porn Law Could be Model for US Law

The United Kingdom could soon pass the world’s first national Revenge Porn bill. The legislation, which is currently going through Parliament, will cover any private sexual image of someone that is circulated, both on and offline, without their consent and designed to cause distress. The bill defines Revenge Porn as “Photographs or films which show people engaged in sexual activity or depicted in a sexual way or with their genitals exposed, where what is shown would not usually be seen in public”  If convicted, the person could face as much as two years in jail.

New technology always breeds new crimes and society must then work to find a balance between the legal and the illegal use of the technology. While several US states have passed criminal Revenge Porn statutes, most do not have any law on the books. Use of the phone and/or the Internet provides a basis for Federal jurisdiction in most RP cases here in the States. Passage of the UK bill should energize the conversation about a similar national law here in America. The main argument against RP laws is not that they are not needed or that the behavior isn’t wrong or should not be punsihed, it is that the law if not properly drafted could ensnare folks engaging in otherwise legal behavior – usually Constitutionally-protected activity.

Blind and occasionally fickle

To be sure, the US has stronger speech rights than Europe – witness how easy it is to be sued for libel and defamation across the pond for example. So like many statutes a disclaimer could be added that nothing in the bill shall be used to prosecute Constiutionally-protected speech. That would free newspapers and reporters from liability for sharing an RP image as part of a news story on RP.  The law could also be narrowed by focusing on the person’s intent – the dissemination of the image must be intentional and the images must be the kind of image that a reasonable person would expect to be private. I recently argued a case before the Georgia Supreme Court where an anti-stalking law was used to obtain a permanent order of protection against a web site owner who merely wrote about and criticized his target using some harsh language. The website owner also threatened to expose already-public information about the target and her family. At oral argument, the justices seemed to understand that speech must cross over to “true threats of physical harm”  before speech can be prohibited. The anti-stalking law need not be struck down but its application can easily be tailored to protect Free Speech.  We’ll see how the decision comes out in about 6 months but  I bring this up to point out that as is often the case, new laws do sometimes take a few cases to shake out the boundaries and find the appropriate and Constitutional way to  apply them.  As I have written before, the same thing happened when states began passing Rape Shield Laws, prohibiting newspapers and others from publishing the names of sexual assault victims and preventing those victms from being cross-examined about their prior sexual behavior.  Now all courts have set guidelines on what is restricted and what is allowable in that arena and a balance between the vicitm’s rights and the First Amendment has been found – the issue is rarely litigated anymore.

The same should happen in the RP arena.  With the news of a new leak of thousands of private images – this time from Snapchat third-party apps- and with cases of RP growing everyday, a national model is a good way to send the message that this behavior will not be tolerated; that the victim’s right to privacy does not end merely because they chose to share a private image with a person of their choosing; and that the law will rise to address society’s needs.

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