Archive for March, 2010

February 2010 North Carolina Bar Exam Results Are Out

This post is for my North Carolina friends who are awaiting their bar exam results. I just got mine in the mail — and I passed. Good news to be sure.

Interestingly, the letter is dated March 27 – a Saturday. Usually the letters go out on a Friday.

I live near Chapel Hill, about thirty miles from Raleigh, where the Bar Examiners are located, so those of you in Charlotte or Wilmington might have to wait until tomorrow to get your results.

Good luck to those of you still awaiting your results, and those of you in other states too. I hear Florida’s results are due very soon.


Roundup – 3/26

The latter half of the week was pretty slow but here’s what we’ve been reading.  Sorry about it being so music heavy, but I figure you all know about Google and China at this point.

Indian music site Rhythm House has fashioned voodoo dolls out of popular artists for an antipiracy campaign.  Above is Lady Gaga.  See also, Kiss, Madonna 50 cent, Slash

Speaking of piracy, the head of the International Actors’ Federation believes that the term “Piracy” is too sexy and should be taken back from filesharers.

THRESQ sheds more light on Bieber’s manager and malltweetgate

Prince is broke. 
If they foreclose on Paisley park, I’m moving to Minnesota.


Justin Bieber’s Manager Arrested for Not Tweeting

I don’t even know what to say about this. 


The State of Three Strikes

It’s spring training season, and that’s as far as I really feel like taking this metaphor at the moment.  Recently, a number of nations have considered implementing a “three strikes and you’re out” rule for illegal downloaders, wherein ISPs would disconnect the infringing user after they were caught pirating copyrighted material a third time.  France introduced the law in September 2009 and while it has yet to go into effect, early studies question its potency. New Zeland put a similar system in place, but had to retinker the law and soften the blow, completely removing the disconnect provision after significant protest. Dynamo agent Ari Emmanuel, inspiration for the Ari Gold character on HBO’s “Entourage” and little brother of White House chief of staff Rahm Emmanuel, has been using his juice to push the President for a simliar system in the United States.

The Obama Administration has remained relatively tight-lipped about its plans for their overall plans, but has insisted that they plan to aggressively protect the nation’s intellectual property.  One of the weapons in their arsenal is the soon-to-be-released Anti-Counterfeiting  Trade Agreement (“ACTA”).    The drafters of the agreement are notoriously silent, but have recently come under fire due to leaked rumors that there will be a “three strikes” provision in the trade agreement.  In response, the European Union has demanded that the US release a draft version of the ACTA in order to show that it does not, in fact, contain the provision.  The EU has taken a hardline stance that it will refuse to accept any sort of provision.  There’s a lot of he-said she-said going on here, and this will be tricky to implement across multiple nations.  With sentiment growing that internet access may be a basic human right, along with a vastly varying stance on piracy by country, agreement to a full disconnect for users seems somewhat unlikely.  Look for the ACTA to address this issue but in a somewhat lighter manner once the bill is released.


Briefs – 3/23

Big stories this past week included Lady Gaga getting sued by all kinds of people, and Vicaom hiring companies to upload their copyrighted content to youtube while embroiled in the lawsuit.  Here are a few more articles that are worth a look.

Bob Donnelly from Lommen Abdo warns against the 360 deal

Roger Miller’s widow owns the rights to “King of the Road”.  Sony owes $~1M in royalties

Canadian Company Clams NBC Stole Hulu Concept/Trademark from Them

Pirated Japanese Pr0n Game installer uploads your personal info

Top 3 Internet Scams Targeting Bands and Musicians


Defamation Trifecta; More

I have just learned the hard way that one cannot simply hit “save” without copying one’s work to the clipboard while using the Wordpress iPhone app, as what has been done may not itself be saved. I’m past the point of retyping the words I just sent to the great Wordpress dashboard in the sky, so here are some links.

New York Times book critic Michiko Kakutani belatedly concludes that Internet culture is ruining everything. Yes, there’s a copyright angle.

Just another rock n’ roll defamation suit.

Just another contract-attorney-vs.-megafirm defamation suit.

Just another refutation-of-autism-myths defamation suit.

Is underspecialization the curse of the bright?


Citizens United Watch: Justice Thomas’s Wife Forms Conservative Lobbying Group Which Will Take Corporate Funds

The Los Angeles Times reports that Virginia Thomas, wife of United States Supreme court Justice Clarence Thomas, has formed a new lobbying group called Liberty Central Inc., which will accept donations from corporations, as permitted under the new corporate speech regime announced in Citizens United v. FEC. (For background, read our earlier post, “Citizens United: Eight Unanswered Questions.”)

The Times speaks to a number of legal ethics experts, who agree that there’s no precedent for addressing potential ethical conflicts raised by a Supreme Court justice with a lobbyist spouse. They note, however, that Thomas’s affiliation with the group might require Justice Thomas to recuse himself from certain cases in the future.

One fact stands out in particular to this reader: the Times says the organization was launched in January 2010, and Ms. Thomas’s bio on the Liberty Central website refers to her as a “new social entrepreneur.” The Citizens United opinion came down on January 21st, 2010. Thus, Liberty Central was either founded immediately before Justice Thomas’s vote in the Citizens United case, or immediately after.

The proximity of Liberty Central’s founding to the release of the Citizens United decision raises a number of questions. Was Liberty Central in the works regardless of the Court’s decision? Did it merely state an intent to receive corporate funds as an afterthought, or does it expect to receive a significant portion of its funds from corporations? Was Virginia Thomas simply well-aware of what many observers suspected — that the Court would remove many restraints on corporate speech — allowing her to begin planning in advance of the Court’s ruling, or was she privy to particular information about the Court’s progress in its deliberations? At which point did she indicate to her husband her intent to find new employment with an organization which would benefit from the Court’s ruling?

The real story here may simply be that studying the means by which Liberty Central intends to operate will allow observers to better predict the practical effects of the Citizens United decision. appears to be a social networking site, with an approach similar to, providing an organizing platform for “new citizen activists,” by which they apparently mean grassroots conservative activists of the Tea Party ilk (the site contains an endorsement from an organization called the Tea Party Patriots). Its website states that Liberty Central will provide access to “directories of funding sources, tools and vendors for conservative activists.” Thus, Liberty Central itself may reap revenue from connecting grassroots activists with corporate funds — a process better known as astroturfing. Will Citizens United provide the wherewithal for an astroturfing explosion in the 2010 Congressional races?


Friday Afternoon Link Roundup

I’d like to apologize to our faithful readers for the relative dearth of content lately. I’ve been busy studying for yet another bar exam as part of my quest to become licensed in every state in the lower 48* and Joe is currently off in some Caribbean fantasyland sipping rum from a coconut. We’ll be back with guns blazing over the weekend. In the interim, here are some highlights of the past week in our corner of the legal world.

*To be fair, I have also thought about sitting for the Alaska bar exam, despite the fact that it’s three days long.

Strategic lawsuits against public participation” (SLAPPs) are lawsuits filed to restrain the speech of an opponent or punish an opponent for past speech. Often involving questionable defamation claims, SLAPPs can cause significant expense and anxiety. Public policy on SLAPPs varies; some states like California have strong anti-SLAPP laws, but others don’t. Now a federal anti-SLAPP statute, called the Citizen Participation Act, is on the table. The Legal Satyricon has the details. If you’re the victim of a SLAPP, the First Amendment Project offers tools for fighting back.

Jalopnik calls this opinion from the Delaware Court of Chancery ”The Greatest Legal Document of All Time,” which may be accurate if you really like auto racing and/or Will Ferrell movies. Thanks to William Bray for the link.

Is the Copyright Royalty Board, which determines webcasting copyright royalty rates, constitutional? Live365 has been arguing that it isn’t. Although Live365 failed to obtain injunctive relief on that ground, the issue remains undecided. Story courtesy CommLawBlog.

Cornell Law’s decision to promote itself by way of reference to fictional Cornellian Andy Bernard from “The Office” comes under fire for a number of reasons. Story courtesy Above the Law.

Cat-SLAPP photo courtesy australianshepherds ( / CC BY 2.0).


Jillian Michaels Sued for False Advertising in Connection with Diet Pill Endorsement

Jillian Michaels of “The Biggest Loser” fame has been hit with a class action suit in connection with a diet drug she endorses. The suit alleges that her Maximum Strength Calorie Control dietary supplement is “worthless.” You can read the complaint here courtesy of E! Online.

The suit alleges that Michaels et al. engaged in false advertising and thereby violated two of California’s tough consumer protection statutes, the Unfair Competition Act and the Consumers Legal Remedies Act. Remedies available under these statutes are what we might term ‘”the whole nine yards,” including injunctive relief, actual damages, restitution, punitive damages, and attorneys’ fees.

According to the complaint, the contested statements include “Two Capsules Before Main Meals and You Lose Weight. That’s It.” As you can see to the left, that phrase is right on the front of the box. The lettering on the rest of the box is too small to read in this image, but Michaels’s website further indicates that the pills should be used “in conjunction with any sensible diet and exercise program,” a detail which doesn’t appear to be mentioned in the complaint.

The Calorie Control FAQ on her website muddies the waters somewhat, stating, “[a]lthough the subjects in a scientific study who took the active compound contained in the Jillian Michaels Calorie Control product lost weight without diet and exercise, the Jillian Michaels Calorie Control should be used in conjunction with any sensible diet and exercise program.” That statement implies that the pills do work without diet or exercise. How many subjects took part in the study in question? Only twenty-four. Additionally, there’s no mention of how much weight the subjects lost.

The deciding factors in Michaels’s suit will probably be the scientific validity of the aforementioned study and the degree to which its data supports the advertising claims in question. In 2007, the Federal Trade Commission settled with a number of diet pill manufacturers, including the makers of the heavily advertised TrimSpa and Xenadrine EFX, for false and misleading advertising. In the case of Xenadrine EFX, the pill’s manufacturer, Robert Chinery, Jr., had completed a study which demonstrated that subjects lost weight after taking the pill. As it turns out, however, the subjects only lost an average of one and a half pounds over ten weeks, and actually lost less weight than those in a control group taking a placebo. The FTC was not mollified, and Chinery ultimately paid over $8 million to settle the claims.

Ironically, Michaels’s father is reportedly a personal injury attorney.

This is not the first suit filed in connection with Michaels’ endorsements. At least two others are also pending.

Michaels aside, the show has encountered relatively few public legal problems. After the New York Times detailed the rather brutal caloric restriction and exercise regimen to which the show’s contestants are subjected, the Hollywood Reporter’s excellent legal blog THR, Esq. asked in November, “Who Will Be The First to Sue ‘The Biggest Loser’?” The answer so far appears to be “no one” — the article notes that “Biggest Loser” contestants sign releases. However, former “Biggest Loser” contestant Matt Hoover has been sued for allegedly being a lousy personal trainer. Who’d have guessed?