Archive for January, 2010

File Under: “Duh”

I’ve been purposely holding off on posting anything about Apple’s new iPad. First, because there’s been a deluge of coverage across the net and I didn’t want to add to the noise. Secondly, because the various IP issues involved, frankly, aren’t that interesting yet. Sure, a trademark dispute was inevitable, but Apple will throw tons of money at Fujitsu and this will go away quietly.

One little nugget of news that I couldn’t let slide, however, was the announcement that the admin of Installous, the popular iPhone program that lets you install cracked apps on a jailbroken phone, was shutting the project down for legal reasons. The admin claims that he didn’t think he was doing anything wrong until he was able to track down the ever elusive and always expensive breed of strange mammal known as the copyright lawyer. [ed note: we're not that hard to find, look for a post soon outlining some resources].

Installous’s modus operandi was that they were in the clear since they were not the ones cracking the applications that were available in the app. Just like Napster, though, a site’s admin can be held vicariously liable for assisting its users in infringing the copyrights of others. The news of the shutdown is a small victory to iPhone app developers, who have lost an estimated 75% of sales, or $450 million, to piracy.

 

6 TV Shows About Young Lawyers (That You’ve Never Heard Of)

TV shows about the legal industry seem to be on the upswing. This morning, NBC announced it had partnered with Conan O’Brien’s Conaco to produce a new legal drama entitled “Justice,” about a Supreme Court justice who leaves the court to start his own law firm.* The New Tork Times’s recent look at the tough situation in which new law school grads find themselves (a situation the authors of this blog know absolutely nothing about) noted the incogruously breezy tone of the new Fox legal dramedy “The Deep End,” a program it ungraciously panned some days later.

*Never mind that this would be the equivalent of the Pope quitting to become a Bible salesman. It’s television, and television doesn’t have to make sense.

In considering these two new shows, we were plagued with deja vu. A little Internet research, including a look at this canonical list of television shows about lawyers, confirmed our suspicion that there have been quite a number of shows about young lawyers, in and out of the company of Supreme Court justices, produced in the past ten years — these shows just don’t seem to last long enough for anyone to get a chance to watch them. We had honestly never seen, or even heard of, any of the following shows, and more’s the pity.

1) “Supreme Courtships” – A 2007 Fox pilot about “the lives of six Supreme Court clerks and the judges they work for.” At least one of the characters,”Holly,” was a “sexy overachiever.” Overachiever? Really? Someone with a job that’s damn near impossible to get is an overachiever. You don’t say. Whether the Supreme Court clerk selection process produces sexy results is another issue entirely, as Supreme Court clerks are the biggest nerds on the planet.

2) “First Monday” – Another show about Supreme Court justices and their clerks, this one perhaps a bit more serious than “Supreme Courtships,” “First Monday” ran for one season in 2002. Dahlia Lithwick’s review in Slate, one of the scant scraps of evidence of this show’s existence, describes it as terrible and involving a lot of shouting.

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Tuesday Afternoon Legal Information Coverage Explosion


(Left: A page from the Center for the Study of the Public Domain’s “Bound by Law” comic book.)

This was originally supposed to be the Monday Afternoon Legal Information Coverage Explosion (“M.A.L.I.C.E.”), but somehow Monday afternoon turned into Tuesday morning. What’s with the acronym, you ask? I’ve been reviewing criminal law for the North Carolina bar exam and I’ve got mnemonics, acronyms and altered mental states on the brain.

Anyway, here are some interesting news stories, opinion pieces and academic papers that came across our desks in the past week.

Our former professor James Boyle (@thepublicdomain) alerts us to The Public Domain Manifesto and to the latest installment of his always-excellent Financial Times column (registration required), entitled “Obama’s Mixed Record on Tech Policy.” Boyle notes that the U.S’s decision to stand up at the World Intellectual Property Organization’s recent summit in support of certain limited copyright exceptions intended to aid the visually impaired has been seen as a small victory for copyright sanity, but that “[w]hen the decision not to throw the blind under the copyright juggernaut counts as enlightened policy, it tells one a lot.”

Our friends the Future of Music Coalition have information for you about the ins and outs of the LiveNation / Ticketmaster merger and the progress of an antitrust suit alleging a digital download price-fixing scheme between the Big 4 major labels.

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Oink Walks, Thomas Catches a Break

Big news from file sharing suits on both sides of the pond.  Last week, Alan Ellis, admin of defunct bittorrent tracker Oink.com, was acquitted of the criminal charge of conspiracy to defraud the music industry.  The case brought to light that Ellis raked in more than $300,000 in donations from users of the site, and the recording industry has pledged to reclaim that revenue in a civil suit.

Meanwhile, US District Court Judge Michael Davis drastically reduced the damage award granted to the recording industry against guilty infringer Jammie Thomas-Rassett.  In dropping Thomas’s penalty from $1.92 million to $54,000, Davis indicated that the initial penalty was “so grossly excessive as to shock the conscience of the court,” noting that he himself may have reduced it even further if not for the jury verdict.  The labels have until this friday to accept the damage award or move for a new trial.  From a public relations standpoint, it would be prudent for the labels to accept the damage award and move on, though it would somewhat compromise their now-defunct litigation strategy.  Plenty more to come on this in the weeks ahead.

 

Citizens United v. FEC: Eight Unanswered Questions

The country is abuzz about the United States Supreme Court’s decision in Citizens United v. Federal Election Commission, soon to be known as “the case that launched a thousand law review articles.” The implications of Citizens United are enormous, and commentators are bitterly divided. Did the Supreme Court untangle a vexatious doctrinal knot and strike a necessary blow for the First Amendment, or did the Court remove the last significant barrier between corporate monetary influence and the political process?

(For cheers, visit the Volokh Conspiracy; for jeers, visit the Huffington Post; for a sampling of positive and negative opinions, visit the New York Times; for useful analysis of underlying issues, visit SCOTUSblog here and here.)

While I can’t answer the many questions the opinion raises, I have outlined some questions of my own, and I am eager to hear other people’s opinions and predictions regarding these issues. (I note that moneyed interests, particularly PACs and wealthy individuals, already exert significant influence on the political process. The following questions are predicated on the assumption that Citizens United will result in a significant increase in the volume of spending on political advertising, and that such spending by corporations will be subject to less regulation than spending by PACs.)

Question One. Justice Kennedy certainly puts a lot of faith in the accuracy of corporate political speech. He takes for granted in his hypotheticals (“[t]he Sierra Club runs an ad . . . that exhorts the public to disapprove of a Congressman who favors logging in national forests”) that the corporations in question are basing their opinions on proven facts. Kennedy’s opinion states that the burden of regulation chills speech in advance of an election and that corporations should be able in essence to speak first and worry later about whether their speech accords with a given regulatory scheme. But what about situations where corporations spread half-truths or even outright falsehoods about candidates? Will candidates be able to get to court in time to stop the corporations before a given election? The law of defamation is not on the side of candidates in such a situation, and neither is the clock. Political candidates are considered “public figures,” and, as such, they must plead and prove additional facts to win a defamation suit: knowledge of the statement’s falsehood and/or knowing disregard for the truth, also known as “actual malice.” This is, of course, a difficult standard to meet. Will an aggrieved candidate be able to do so before such a corporate-sponsored falsehood undermines an entire campaign? Will courts do anything to make it easier, at least procedurally, for candidates to obtain injunctive relief quickly?

Question Two. In Section 3 of the opinion, Justice Kennedy dismisses the issue of whether the government has an interest in protecting dissenting shareholders from being compelled to fund corporate political speech, stating, “[a]ssume . . . that a shareholder of a corporation that owns a newspaper disagrees with the political views the newspaper expresses. . . . Under the Government’s view, that potential disagreement could give the Government the authority to restrict the media corporation’s political speech.” Kennedy’s hypothetical, however, focuses on a publicly held media corporation, despite the fact that both law and tradition have treated the political speech of media corporations differently from that of non-media corporations. Wouldn’t a shareholder in a media corporation, before purchasing his or her shares, understand that expressing political opinion, through an editorial board or similar means, is part of the traditional business of that corporation in a way that it isn’t for, say, a plastics company?

Question Three. Kennedy proceeds, “[t]here is, furthermore, little evidence of abuse that cannot be corrected by shareholders ‘through the procedures of corporate democracy.’” He further states that “[w]ith the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.” Despite Kennedy’s faith in the power of the Internet, will it really be possible for shareholders to express disagreement with corporate political speech through corporate democratic measures quickly enough to protect their own interests, especially if the mere production of the ad exposes the corporation to suit or harms its reputation?

Question Four. Further, if shareholders can’t quickly make their views known through traditional measures of corporate democracy, won’t they find new ways to voice their disagreement? For example: if a corporate-sponsored political ad leads to a defamation lawsuit against the corporation, will that suit lead to an accompanying shareholder derivative suit against the corporate directors who approved the advertisement that exposed the corporation to liability? What if an advertising campaign is factually accurate but takes a wildly unpopular stance that ultimately hurts the corporation’s bottom line?

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@Diditleak Goes Dark, Inspires

The Village Voice has a profile today on Alan Carton, the recently deceased creator of the blog/twitter account “Did it Leak”.   Cloaked in anonymity, Carton’s website was dually useful for fans to track down new releases, critics to get a jump on their peers, and record execs to plug holes [though I'm sure they didn't see it that way].  Alan’s dedication to his craft was nothing short of heroic, tracking down new leaks right up until he eventually succumbed to cancer.

That’s all for now, we’ll be back to the full posts next week.

 

“Copyright Criminals” Premieres Tuesday, Jan. 19 on PBS

Copyright Criminals,” a film that examines the conflict between the current law of copyright and the norms of the community of musicians who employ sampling as a creative technique, premieres on PBS’s Independent Lens beginning on Tuesday, January 19, 2010, and will be replayed throughout the week. Check the listings here to see if your local PBS affiliate will be airing it. If not, a DVD of the film will be on sale beginning January 26. Creative Commons sponsored a remix contest to accompany the film on their CCMixter site and you can find the winners here.

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Conan’s Counsel Erred… But How Badly?

A number of commentators, including Business Insider, have cast aspersions upon Conan O’Brien’s legal counsel in the wake of assertions that O’Brien’s “Tonight Show” contract does not specify the time slot at which the “Tonight Show” must appear. If true, this omission would considerably weaken O’Brien’s negotiating position as he fights NBC’s efforts to bump him from the “Tonight Show”’s long-standing 11:35 PM time slot (the Daily Beast claims Conan’s departure from NBC is a done deal but as of late Thursday night other sources have not confirmed). Gawker lays the blame at the feet of O’Brien’s agent Ari Emanuel, claiming a few quality hours with a popular 1990s TV industry tell-all would have clued Emanuel in to potential time slot treachery by NBC.

Admittedly, it is the job of deal counsel to foresee and avoid problems such as these and to prevent clients from incurring the costs of resolving them. But is Conan really up the creek on the time slot issue?

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Green is the Operative Word, Apparently

Tavern on the Green, the quintessential New York City landmark-cum-tourist trap, recently filed for bankruptcy protection.  Yesterday, the restaurant began to auction off its absurdities assets to the highest bidder.  Notably missing from the auction is the right to use of the trademark “Tavern on the Green.”  Analysts value the name at a staggering  $19 million.

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A Timely Reminder of the Benefits of Copyright Registration

James G. Gatto, Jenna F. Leavitt, and Benjamin T. Duranske at Pillsbury Winthrop have posted an article entitled “Copyright Registration for Virtual Goods: The Benefits of Timely Filing,” which serves as a helpful reminder of the benefits of timely filing a copyright application. “Timely filed” in this context means prior to any alleged infringement, or within three months of first publication.

As they explain, copyright registration isn’t terribly difficult or expensive, and timely registration offers significant advantages to copyright holders contemplating litigation.

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