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.

Apr 05 2013

Nassau’s Foreclosure Clinic – A View From the Trenches

Every month since March 2009, Nassau County Bar Association attorneys have volunteered to assist Nassau homeowners concerned about mortgage foreclosure, helping over 2,000 families with advice and strategies to keep their homes during one of the worst recessions in modern history. Organized by NCBA members Caryle Katz and Gale Berg, the clinics are held the first Monday of every month at the Bar Association’s headquarters in Mineola, NY.

NCBANCBA’s unique program allows homeowners concerned about foreclosure matters or are already in the foreclosure process involving property in Nassau County, to meet one-on-one with a volunteer attorney for free legal guidance, to receive loan modification assistance and bankruptcy information – all in one room. The program is made possible in part by grants from the NYS Office of the Attorney General. I have been a participating for about a year now assisting as a Spanish interpreter (I know nothing about this area of the law) when needed. The experience has been a real eye-opener about the need for legal services for the poor and the depth and severity of the foreclosure crisis.

New York State Chief Judge Jonathan Lippman had proposed a $100 million increase in state financing for lawyers who represent the poor in civil cases that deal with “the essentials of life” such as eviction and child support. The proposal was to be phased in over four years, with an increase of $25 million beginning next year. $15 Million was approved for this year instead. Having the indigent represent themselves (as happens in 95% of landlord-tenant, foreclosure and child custody matters) severely slows the process down. As any attorney who has ever had to litigate against a pro se party, you know that it is much more efficient if both sides have competent counsel – you can get right down to the issues.

That was evident at the clinic as homeowners were fighting for years to save their homes without a clear understanding of their options and best strategies. They leave the clinic knowing their rights and their obligations and with a battle plan that best suits them. The other striking thing is how banks and mortgage brokers got us all into this mess. Family after family tells almost the same story. They heard about loans for first time homebuyers in areas like Uniondale, Hempstead, and Freeport. The homes were priced in the $330,000 range. They did not have to put any money down. No income verification. First ten years are interest only payments then a balloon payment would be owed of about $50-75,000. Don’t worry, if you could not afford that, the home value would have increased that much in that time, so just re-finance! Just sign this piece of paper and you get your dream home. I guess the banks were counting on the real estate market continuing to rise so that they would either get the payments or the properties when people started to fall behind.

Only now, those homes are worth $150-195,000. With $300,000 in mortgage on top of them. So the banks are forced to sell the houses in a short sale or work out new loans with their customers or take the deed back and have the former homeowners become tenants, renting the very same house they used to own at about half of the cost of their mortgage payment. Many homeowners are gaining a windfall- staying in the home for three years or more and not paying a dime towards the mortgage, just paying utilities. The banks keep paying the real estate taxes for fear of tax liens, so if you don’t care about your credit rating, its really not such a bad deal. What is ironic and troubling is that many folks come to the clinic looking for information on how to refinance as they struggle to keep up with the payments. Many times they are told that the banks will not talk to them about refinancing until they are in default – so if they want help, they need to stop paying and get into default status and foreclosure mode. Non-sensical to me , but what do I know, I just interpret.

The NCBA also has clinics that help victims of Hurricane Sandy, the elderly and indigent veterans. So many people leave the clinic with a sense of relief – even if they found out there is no way of saving their home- the uncertainty and dread of the court proceedings filled them with anxiety. Having a lawyer explain the situation and their options settles them down and gets them focused on doing all they can to help their circumstances. It’s a clear example of what lawyers do best for people – navigate the legal waters and chart a course to the safest harbor available. Kudos to Caryle Katz and Gale Berg for being the driving forces behind this initiative – it should be a model for Bar Associations around the State.

Mar 29 2013

Where’s Earl Warren When You Need Him?

As I read the various arguments made before the US Supreme Court in the two gay marriage cases heard this week, and with Roman Catholic Easter coming up this Sunday, I can’t help but wish we could resurrect my personal legal Jesus, Earl Warren, to replace John Roberts as Chief Justice for awhile. Justice Warren had them all fooled. A diehard Republican Earl Warren was the three-time Governor of California who was the VP Candidate with Thomas Dewey when Harry Truman pulled off the famous upset. When Eisenhower and Nixon were elected in 1952, Ike nominated Warren as Chief Justice in a recess appointment to avoid any fighting over the nomination (see- I told you TeaPartiers that Obama didn’t invent recess appointments!). Justice Warren ended up presiding over one of the most liberal, groundbreaking Supreme Courts in history. Its almost inconceivable that one man could have been the driving force behind so many decisions that still stand as landmarks of Supreme Court jurisprudence. Yes, he had help from some great justices that gave him the votes he needed (Douglas, Brennan, Marshall, etc) and his opinions were never quite as well written as theirs, but as his Wiki page attests,” his strength lay in his public gravitas, his leadership skills and in his firm belief that the Constitution guaranteed natural rights and that the Court had a unique role in protecting those rights.” Read that last sentence again – The Constitution guarantees natural rights.” That belief and his drive led him to direct a court that changed America forever.

EarlWarrenThe Warren court decided Brown v. Board of Education (in which Warren insisted and fought for unanimity) desegregating American schools. Was there ever a more clear “states-rights-issue” than education? Warren said- who cares about States’ rights if those rights violate the right to Equal Protection under the Constitution? Brown applied to schools, but soon the Court enlarged the concept to other state actions, striking down racial classification in many areas -Warren insisted all of those be unanimous as well. That driving force led Congress to pass the Civil Rights Act of 1964 and the Voting Rights Act of 1965. In Gideon v. Wainwright, the Court held that the Sixth Amendment required that all indigent criminal defendants receive publicly funded counsel. Though he rode to the Governorship of California on his record as a tough prosecutor, he was wary of police abuse. In Miranda v. Arizona required that certain rights of a person interrogated while in police custody be clearly explained, including the right to an attorney (still called the “Miranda warnings”). Mapp v. Ohioprevented prosecutors from using evidence seized in illegal searches. It was the Warren Court that outlawed school prayer in Engle v. Vitale which was as gutsy a decision as the Supreme Court had ever seen at the time. Warren was also behind the Court’s decision in Griswold v. Connecticut which announced to the country that its citizen’s enjoyed “a constitutionally protected right of privacy.” Griswold led directly to Roe v. Wade which was decided after Warren left the bench. Believe it or not I could go on as the Warren Court was behind even more landmark decisions during the 16 years he served on the Big Bench. But you get the picture by now I imagine.

Then you turn and read about all the hemming and hawing occurring before the current Supremes as they decide the greatest civil rights issue currently before them. There are procedural issues in both cases that would allow the justices to skirt the issue. In the California case involving that State’s Proposition 8, the State itself is not appealing the ruling meaning that the activist organization that is might not have standing to do so. In the Federal Defense of Marriage Act case, the Obama administration abandoned its defense of the law but continues to enforce it. House Republicans are now defending DOMA in the courts. So the Court feels like the Executive Branch is leaving it to the them to do the dirty work. Here’s a couple of quotes that show the waffling: Justice Kennedy: “We’re heading into uncharted waters here. We have five years of information to weigh against 2,000 years of history of more.” Alito: “You want us to step in based on the effects of this institution [gay marriage] which is newer than cellphones or the Internet. I mean we do not have the ability to see the future.” Scalia: “I’m curious. When did it become unconstitutional to exclude homosexual couples from marriage. 1791? 1868, when the Fourteenth Amendment was adopted?” Roberts: “I’m not sure that it’s right to view this as excluding a particular group. When the institution of marriage developed historically, people didn’t get around and say, ‘Let’s have this institution, but let’s keep out homosexuals.’ The institution developed to serve purposes that, by their nature, didn’t include homosexual couples.” Sotomayor: “If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?We let issues perk, and so we let racial segregation perk for 50 years from 1898 to 1954.”

So we need old Earl right now. We need Earl to tell these folks that denying equal protection to folks on any such a random, irrelevant basis as sexual orientation is wrong under the natural rights and right to privacy guaranteed by our Constitution. We need Earl to remind them of the power of the Court as the ultimate last word in Constitutional interpretation. We need Earl to tell this court that waiting won’t solve anything but make the American public look upon the court as wishy-washy and afraid to act decisively. We need Earl to tell this court that now is the time to put their stamp on this country and let us all move one step closer to the founding principle of this nation: that all men are created equal.

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