Continue reading »]]> 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.

Continue reading »]]> 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.

What’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.

Continue reading »]]> 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?

Last 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.

Continue reading »]]> 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.

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.

Continue reading »]]> 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.

NCBA’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.

Continue reading »]]> 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.

The 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.

Continue reading »]]> In a stunning blow to large publishers, the United States Supreme Court overturned two lower courts in determining that the copyright law did not prevent a Thai student-entrepreneur named Supap Kirtsaeng from buying cheaper, legally-obtained versions of various textbooks in Thailand, bringing them to the US, and then re-selling them to his fellow students here in the states on eBay. The price margins were so big that evidence showed he made $1.2 million in receipts over the life of the business. The decision in Kirstaeng v. John Wiley & Sons decided a battle not just between two litigants but between two aspects of the US Copyright Law. One of the rights you acquire when you acquire copyright in a work is the exclusive distribution and importation right contained in section 602(a)(1) of the Copyright Act. But the Copyright Act also contains section 109(a) which sets forth the first sale doctrine:

“Notwithstanding the provisions of section 106(3) [the section that grants the owner exclusive distributionrights], the owner of a particular copy or phonorecord lawfully made under this title . . . is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy…”

That’s why used bookstores exist. Once I buy a copyrighted work, I am free to sell that one copy to anyone I please at whatever price I can obtain with no money going to the author of the work; the author only gets the right to the “first sale” of the work. Of course, I cannot copy my copy and distribute it, I can only sell the one that I have. So which right wins out? The importation right or the first sale right? The Supremes, in a 6-3 split, voted for first sale. Writing for the majority, Justice Breyer said that the first sale doctrine permeates the entire Copyright Act including the distribution clause (106) and the importation clause (602).

It all came down to a simple phrase in the Copyright Law. Section 109 of the Act which sets forth the first sale doctrine says it applies to all works lawfully made under this title. Wiley argued that this phrase limited the application of first-sale to works made and distributed in the United States alone. The two courts below agreed with this interpretation and said that the doctrine did not apply to books made and sold in foreign lands. But Breyer agreed with Kirstaeng that nothing in section 109 gave it any geographical limitation. He broke the phrase down even more saying it came to the definition of the word “under:”

One difficulty is that neither “under” nor any other word in the phrase means “where.” See, e.g., 18 Oxford English Dictionary, supra, at 947–952 (definition of “under”). It might mean “subject to,” see post, at 6, but as this
Court has repeatedly acknowledged, the word evades a uniform, consistent meaning. See Kucana v. Holder, 558 U. S. 233, 245 (2010) (“‘under’ is chameleon”); Ardestani v. INS, 502 U. S. 129, 135 (1991) (“under” has “many dictionary definitions” and “must draw its meaning from its context”).

[My law students will of course likely find humor in Breyer saying "under" and "where" in the same sentence so let me cut them off at the pass and say, yes I see it and I get it]. Breyer said “under” means it basic English definition – any work to which the Act applies and since §104 of the Act itself says that works “subject to protection under this title” include unpublished works “without regard to the nationality or domicile of the author,” and works “first published” in any one of the nearly 180 nations that have signed a copyright treaty with the United States. §§104(a), the Act covers the US textbooks printed and distributed in Thailand. The majority said if the Copyright Act’s first sale doctrine is to contain a geographical limitation, it is for Congress to draft one not the court.

Justices Kagan and Alito concurred with the majority but wanted to highlight that the court in Quality King Distibutors, Inc v. L’Anza Research Int’l Inc which was decided in 1998 already held that the importation clause was limited by the first sale clause and that since Congress did nothing to overturn that case, it must have agreed with the court’s interpretation of the statute.I Congress wants this protection to extend to these facts, Kagan wrote, it has to write a law that says so and overturns Quality King as well.

The dissent was written by Justice Ginsburg and joined by Scalia and Kennedy. Kennedy was the surprise vote here (and that Thomas did not join Scalia). Ginsburg is a staunch upholder of copyright at every turn so this end-around of the importation clause did not sit right with her. Scalia likely saw the monetary damage this could do to large corporations and wanted to make sure they could get every dollar out of their intellectual property. Ginsburg too focused on the word “under”:

But the Court overlooks that, according to the very dictionaries it cites . . . the word “under” commonly signals a relationship of subjection, where one thing is governed or regulated by another. See Black’s Law Dictionary 1525 (6th ed.1990) (“under” “frequently” means “inferior” or “subordinate” (internal quotation marks omitted)); 18 Oxford English Dictionary 950 (2d ed. 1989) (“under” means, among other things, “[i]n accordance with (some regulative power or principle)” (emphasis added)). See also Webster’s Third New International Dictionary 2487 (1961) (“under” means, among other things, “in . . . a condition of subjection, regulation, or subordination” and “suffering restriction, restraint, or control by”). Only by disregarding this established meaning of “under” can the Court arrive at the conclusion that Wiley’s foreign-manufactured textbooks were “lawfully made under” U. S. copyright law,even though that law did not govern their creation

So the dissent held that since these books were manufactured in Thailand, US Copyright Law did not apply and they were not “lawfully made under” the Copyright Act. The decision also stated that the court in Quality King specifically stated that it was not addressing works made in foreign lands. But the decision did not get enough votes, so for now it is merely a footnote to history.

The decision is another example of how the Internet is allowing crafty entrepreneurs find the gray area in laws written well before its inception. Kirstaeng’s business model would fail without e-Bay. He can advertise the books at no cost, rely on Google search to have interested buyers find his sales, and have his Thai family ship the books diredtly from Thailand to the US customer without any warehousing fees. That all allows him to add a nice markup to the book.

I expect Congress will likely decide this issue in the end by either changing the Copyright Act to limit the first sale doctrine to US books on US soil or by allowing this decision to stand without any change to the Act, signaling its agreement with the ruling by its silence. My money is on the first one as Congress never met a lobby it didn’t like and large publishers are sure to be lobbying Congress as we speak to get this overturned. They will likely wave the flag and say that US companies should not be undersold on its own goods by folks banking on the lower costs of goods manufactured abroad. That they themselves are the ones manufacturing and selling them at a lower cost to foreigners than to US citizens will likely not be part of their argument.

Continue reading »]]> NYPD ex-cop Gilberto Valle has been found guilty this morning of conspiring to kidnap women and illegally using Federal databases to help him do so. Dubbed “the Cannibal Cop” Valle has tried to put forth a defense that he was just fantasizing and exploring the netherworld of the dark side of the Internet.

But it was certain concrete steps he took towards the act of kidnapping (and then according to his emails, cooking and eating the victims) that were the nails in his coffin. He went onto National Crime Information Center databases that he had access to as cop get addresses and information on the homes of his intended victims. Federal prosecutors love conspiracy theory because it’s the closest thing to prosecuting thought crimes since the publication of George Orwell’s 1984 As a matter of fact in Federal drug conspiracy cases you don’t even need the one overt act in furtherance of the crime to be charged.

I think Valle went a little beyond mere thought, however, and it was just to much for the jury to swallow. I also wonder if the case had gone to State Court whether the same result would have been reached as jury selection is so limited in Federal cases as compared to state trials that I doubt defense counsel was allowed to fully explore potential jurors feelings about the difficult issues this case presented.

Continue reading »]]> In this morning’s NY Law Journal, I read an interesting case out of Suffolk County NY involving a piano. It seems that the plaintiffs,Paul and Karen Palmieri, purchased a rebuilt, refinished Weber 6′ grand piano for $9,000 in 1996 from The Piano Exchange in Glen Cove. The agreement’s terms called for a “rebuilt and refurnished-matching bench-guaranteed indefinitely parts and labor.” The lawsuit includes allegations of breach of contract, deceit and breach of the covenant of good faith and fair dealing. So far so good, a simple breach of contract case.The only problem is that the plaintiffs are suing for $1.259 Million in damages:Two Hundred Fifty Thousand Dollars ($250,000.00); alleging deceit claiming damages of Five Hundred Thousand Dollars ($500,000.00); alleging breach of the covenant of good faith and fair dealing and seeking damages of Three Hundred and Fifty Thousand Dollars($350,000.00) alleging tortious interference with a contract seeking damages of One Hundred and Fifty Thousand Dollars ($150,000.00) and lastly, alleging unjust enrichment seeking Nine Thousand Dollars ($9,000.00).

Judge Garguilo was not amused. He wants the plaintiffs’ attorney, Judith Berger, to appear before him on March 27, 2013, to explain the basis for this damages demand which is 138 times the amount paid for the piano 17 years ago. What I admire about the decision is that Judge Garguilo understood the effect getting hit with such a large claim can have against the other litigant:

Is it a reasonable application of the privilege to practice law to serve a complaint upon a person, in these circumstances, and stun the recipient-defendant with damage claims beyond the universe of those which logically follow the alleged breach? The Court thinks not. . . .Does the administration of Justice include a responsibility to shield litigants from conduct that may cause stress, anxiety and fear of pecuniary ruination far beyond the bounds of reasonable foreseeability? The Court thinks it does. The Courts are intimidating enough to ordinary people without needless exacerbation occasioned by grossly exaggerated claims of financial loss.

It will be interesting to see what happens on the 27th of March and I will keep you posted. The importance of this decision is the judge’s clear articulation of lawyer’s obligation to have a factual basis for the monetary damages they seek in their pleadings. Sure that can be hard to do in personal injury and medical malpractice actions where putting a value on pain and suffering can be a subjective endeavor and one cannot always determine when the complaint is field what the life-long consequence of the injuries suffered may be. But that is why in those types of cases, the law requires you to NOT put a monetary damage in the complaint. In commercial cases, however, the damages recoverable are usually specified by law and the damages are known and set when the complaint is filed.

This case can give some hope and be of some use to those hit with copyright infringement claims, where copyright holders routinely over-inflate the amount of damages that they can get for the alleged infringement. A quick tour of the internet will reveal that this problem – “copyright trolling” as it is known in the vernacular – is rampant. In fact, I have a whole website devoted to the issue (www.extortionletterinfo.com). Both Federal and State courts allow for sanctions to be levied upon firms and clients that make unsupported and baseless claims in their pleadings. Lawyers should similarly be admonished and sanctioned for making such baseless claims in their legal correspondence to alleged infringement targets. Kudos to Judge Garguilo for understanding the effect receiving such baseless claims can have on a person and further realizing that this is likely the intended consequence of sending such an exorbitant, extortionate damages amount.

Something else interested me in the case. I noticed that in the address block for the lawyer for the Palmieris, after the name Judith N. Berger, it read “The Coalition of Landlords, Homeowners & Merchants, Inc.” That surprised me because in NY attorneys are not allowed to practice under a trade name. The name of at least one of the principals must be contained in the firm name. So for example, you can name a firm The Smith Law Group if one of the partners or shareholders is named Smith, but you can’t name it “Damn Good Lawyers Group.” Something else Judge Garguilo should look into. I figured he would not though so I did myself. It appears the Coalition is some kind of legal self-help, libertarianish, not-for-profit group that charges people to fight building and housing violations. Judith appears to be their counsel. Their president is none other than Paul Palmieri, the plaintiff in this case involving an apparently very valuable rebuilt ancient piano. There are a few online complaints about The Coalition but what caught my eye is that the Coalition is no stranger to representing folks on claims that get hit for sanctions. In 2006, they were ordered to explain why they shouldn’t get hit with sanctions in Palmieri v. Thomas 29 Ad3d 658 (2d Dept 2006)(“The Coalition’s arguments appear to be completely without merit in law and unsupported by a reasonable argument for an extension, modification, or reversal of existing law, or undertaken primarily to delay or prolong the resolution of litigation or to harass or maliciously injure another.Accordingly, we direct counsel for the parties to submit affirmations or affidavits on the issue of the imposition of sanctions and/or costs against the Coalition and/or its counsel”); in 2007, it was the law firm on a claim that the plaintiffs were forced to pay $2,547 in sanctions for a frivolous claim brought against a process server employed by the Town of Brookhaven in Mascia v. Maresco 39 Ad3d 504 (2d Dep’t 2007)(The contentions advanced by the plaintiffs here were completely without merit in law or fact and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law. Moreover, the plaintiffs’ conduct in commencing this action and in continuing to advance their claims, “appears to have been intended primarily to harass the defendant. Accordingly, the Supreme Court providently exercised its discretion in awarding the defendant’s employer its costs and reasonable attorney’s fees as a sanction); and in 2010 it was sanctioned for bringing a frivolous complaint against a law firm in the case of Matter of Seamans 2010 NY Slip Op. 31749(Nassau County Surrogate’s Court)(It appears clear to the court that many of the Coalition’s affirmative defenses, cross-claims, and counterclaims were either completely without merit in law and could not be supported by a reasonable argument for an extension
modification or reversal of existing law, or were undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another, as evidenced by the failure to oppose the dismissal of several of them.
The malicious injury of another is particularly evident in the claims made against the petitioner’s attorneys.) That matter is still on appeal.

It is important that courts continue on the road commenced by Judge Garguilo in this case and address the making of frivolous damages claims in the same manner they address making frivolous substantive claims. Although based on the above track record, it seems that getting hit with sanctions may not be enough to teach some people this lesson.

Continue reading »]]> I am not clear how this happens in America in 2013. Steve Slevin was pulled over for DWI in Dona Ana County, New Mexico. Slevin was soon placed in padded cell in the jail’s floor, naked with only a suicide smock on, as a form of detoxification. Slevin then went into medical observation for a few weeks, due to depression. He was placed in an observation cell with its own shower, toilet and a window so he could be observed. From there they transferred him to solitary confinement, where he would spend the next 22 months. He was never arraigned on any charge; he never saw a judge; he was not provided with a lawyer; he never got medical treatment; he just sat in solitary confinement while the County waited for . . .I don’t know what – for him to automatically get better? Over the first three months in the segregation cell, Slevin was able to write letters, some of which were to his sister, others of which were correspondences asking his jailers for assistance — stating that he needed medical attention, that he couldn’t sleep, or he was starting to have panic attacks. After three months in solitary confinement, Slevin became delirious. At that point, he sat back and forth and began rocking. From January 2006 until May of 2007, “he just rocked back and forth,” his lawyer Matt Coyte told ABC news.

Slevin would only get out of his small cell at first, a few times every month. After that, there were periods up to four months when he did not leave. Though he was given food and medication during these periods, he was not bathing. He had fungus on his skin,his teeth were rotting. He began to deteriorate. In this period he had an abscess on a tooth. Without any medical attention he twisted it back and forth for eight hours until he was able to rip it out himself, his lawyer said. On June 22, 2007 after having been locked up for 22 months, all the charges against Slevin were dismissed by a district court judge. This before and after picture taken by the Sheriff’s Department tells what that time in solitary did to Slevin better than anything I could write. On the left is the day he went in and on the right the day he got out:

Coyte filed a civil rights claim against the county which they refused to settle. The County claimed that Slevin wanted to remain in solitary confinement and refused medical treatment. But testimony during the week-long trial from guards who had worked at the Dona Ana County Detention Center painted a different picture as they told of Slevin being kept in the conditions he described, and detailed the overall poor management of prisoners. Slevin was awarded $22 million by a jury. That amount was appealed, and on Feb. 12 they settled for $15.5 million, which was announced this week. The Doña Ana County Board of Commissioners released a statement Tuesday saying that it “deeply regrets the harm Mr. Slevin suffered during this period.” Yeah, I’m sure that’s what you regret. Slevin may have been the man the State forgot, but odds are they will remember him now for a very long time.