All posts in Law

→ Optometrists Push For State Laws Blocking Online Eye Exams

Wait? Is this really a thing? Talk about disruption.

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→ Law and the Multiverse looks at Orphan Black’s “Patenting the Clones” Storyline

No, no, no.  Wrong, wrong, wrongity wrong.  The clones cannot be patented. Even if they could be, that does not mean that Dyad owns them or Kira.  Oh how wrong this is, let me count the ways.

In the US it’s possible to patent genetically engineered animals, but it is not possible to patent anything that is “directed to or encompasses a human being.”  This was a long-standing Patent Office policy and was codified by the 2011 America Invents Act.  Furthermore, the 13th Amendment’s prohibition on slavery would almost certainly mean that even if it were possible to obtain a patent on a genetically engineered human being it would be impossible to enforce such a patent.

As an intellectual property attorney1, the “they patented us!” storyline pulled me out of the show immediately. In fact, I am now a couple of episodes behind because of how wrongly that particular issue was handled.


  1. I am not a patent attorney, though I am familiar with the concepts related to patents. 

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→ Numbers of People Taking the LSAT Plummeting

Wow. What a huge reduction. I am not sure whether it is a results of all the stories about how it is for lawyers to find jobs, or if it is just general economic malaise. Regardless, they are pretty shocking numbers.

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→ The Legal System Used to be So Cool

From the excellent Now I Know newsletter:

But Thornton had an antiquated legal trick up his sleeve too, and threw down the gauntlet — literally. Thornton, while entering his plea before the court, put on a pair of leather gauntlets (perhaps like these?) and tossed another on the ground toward William Ashford’s feet. The accused murderer was challenging his alleged victim’s brother to a duel — because the law allowed him to.

Thornton was invoking his right to a trial by battle, a custom stemming from the Normans nearly a millennium earlier. It was simple: someone accused of a crime and not obviously guilty – Wikipedia says ”in the absence of witnesses or a confession” — could settle the matter by duking it out against his accuser. The theory was that the Almighty would ensure that the outcome be the one in line with the goals of a just society — after a lot of bruises, bleeding, and broken bones, of course. And while trial by battle (also called “trial by comabt”) disappeared almost entirely (in Europe, at least) by the 16th century — humanity concluded that incorporeal beings tend not to meddle in the affairs with mere mortals, at least not in cases like these — Parliament never got around to actually revoking the law. So the Ashford v Thornton court allowed it.

I wonder how this could be applied to software copyright disputes? Maybe a game of Mario Kart?

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→ Healthcare.gov Leaves Out Copyright Notice for the Open Source Code it Used

So, not only does the system not work, but the developers did not follow the licensing requirements when integrating the open source code they used?1 What a disaster.


  1. DISCLAIMER: This post may contain some discussion about legal issues, but (1) it is not legal advice, (2) it does not establish an attorney-client relationship, and (3) it is not advertising for legal services. The full disclaimer can be found on the Disclaimer Page

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→ Judge Finds Apple Colluded With Publishers on E-Book Pricing

Chad Bray and Joe Palazzolo, writing at the Wall Street Journal:

In a stern rebuke to Apple Inc.’s AAPL -0.45% electronic books sales strategy, a federal judge has ruled that the company colluded with five major U.S. publishers to artificially drive up the prices of e-books in the months ahead of the technology company entering the market in 2010.

I have not read the opinion yet, but this decision seemed inevitable based on the coverage of the trial I did read.1


  1. DISCLAIMER: This post may contain some discussion about legal issues, but (1) it is not legal advice, (2) it does not establish an attorney-client relationship, and (3) it is not advertising for legal services. The full disclaimer can be found on the Disclaimer Page

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→ June Swoon: Legal Sector Shed 3,600 Jobs Last Month

Initial BLS reports show the legal sector shedding 3,600 positions in June, the largest one-month drop since a 3,300-job dip recorded during the same period two years ago. Last month was also the second in a row during which the industry lost more jobs than it gained. The BLS originally estimated that the legal sector lost 500 jobs in May—a figure the bureau revised Friday to reflect a loss of 2,900 positions that month instead.

This is depressing. I have friends who graduated in 2013 that are still looking for legal jobs, and news like this is not going to make it any easier for them.

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→ Trey Ratcliff on Why He Doesn’t Use Watermarks

One of his reasons stands out to me:

We do register our images with the copyright office, so if someone uses an image commercially without a proper license, it is an easy lawsuit. Easy. We’ve had many many wins (often which happen even before you go to court), but we can’t talk about them because it’s always in the paperwork. But there are many online articles you can find out about our lawsuits… everyone from Time magazine to the Sydney Newspapers.

Keep that in mind when you are trying to decide whether or not to slap some awful watermark on your photos.1


  1. DISCLAIMER: This post may contain some discussion about legal issues, but (1) it is not legal advice, (2) it does not establish an attorney-client relationship, and (3) it is not advertising for legal services. The full disclaimer can be found on the Disclaimer Page

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→ The Highlight of Today’s Supreme Court Rulings

From footnote 7 from Justice Alito’s dissenting opinion in Hollingsworth v. Perry about now-retired District Judge Vaughn Walker:

At times, the trial reached the heights of parody, as when the trial judge questioned his ability to take into account the views of great thinkers of the past because they were unavailable to testify in person in his courtroom.

And, if this spectacle were not enough, some professors of constitutional law argued that we [Justices of the Supreme Court] are bound to accept the trial judge’s findings – including those on major philosophical questions and predictions about the future – unless they are ‘clearly erroneous’….Only an arrogant legal culture that has lost all appreciation of its own limitations could take such a suggestion seriously.

That is some excellent legal writing.

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→ In His Latest Opinion, Clarence Thomas Shows How It’s Done

Wesley J. Smith points out how well written Clarence Thomas’ latest opinion is:

That’s how a Supreme Court decision should be written: Precise. Limited in scope. No bloviating. To the point. Applying, not creating law. Bravo Justice Thomas. Would your colleagues knew how to do it as well. (emphasis in original)

I completely agree.1


  1. DISCLAIMER: This post may contain some discussion about legal issues, but (1) it is not legal advice, (2) it does not establish an attorney-client relationship, and (3) it is not advertising for legal services. The full disclaimer can be found on the Disclaimer Page

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Supporting the EFF Against a Patent Troll Attacking Podcasters

Recently, the EFF has launched campaign to stop a patent troll that is coming after podcasters, large and small:

We need your help to save podcasting. EFF is partnering with leading lawyers to bust a key patent being used to threaten podcasters. … [W]e need your help to find prior art and cover the filing fees for a brand new patent busting procedure.

I am joining the likes of Ben Brooks, Marco Arment, David Spark and John Gruber in supporting the EFF’s efforts to fight back.[1] If you are someone who listens to podcasts, I encourage you to do the same.


  1. DISCLAIMER: This post may contain some discussion about legal issues, but (1) it is not legal advice, (2) it does not establish an attorney-client relationship, and (3) it is not advertising for legal services. The full disclaimer can be found on the Disclaimer Page.  ↩

→ Comic Book Legal Defense Fund Explains Why SAGA #12 Is Protected By the First Amendment | Comic Book Legal Defense Fund

Was this post really necessary? Did people think they were going to get in trouble with the law for selling this book?1


  1. DISCLAIMER: This post may contain some discussion about legal issues, but (1) it is not legal advice, (2) it does not establish an attorney-client relationship, and (3) it is not advertising for legal services. The full disclaimer can be found on the Disclaimer Page

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→ A Repsonse to Scott Turow’s New York Times Article

An excellent response to Mr. Turow by Mike Masnick. If you read the Turow piece, then I would encourage you to read Mr. Masnick’s whole reply.

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→ New York Times Column on the “Slow Death of the American Author.”

Head of the Author’s Guild Scott Turow writes about eBooks, the recent Supreme Court decision regarding importation of international versions of foreign works, and how those working against authors in America trying to make a living.

My thoughts on Mr. Turow’s column:1

I think this is a market failure not a copyright law failure. The existing publisher-centric model seems destined to perish in the digital market. Authors who can take advantage of channels not involving the traditional publishers will thrive, while publishers and those who cling to that model will not.

I think the publishers took their last stab at relevance when they partnered with Apple to try and set standard eBook prices across the industry. Now that the DoJ has broken that up, I think it is only a matter of time before the publishers start to crumble. My guess is that the publishers will slowly start to merge with one another in hopes of staying afloat, but that, ultimately, they will fade away.

I would encourage authors like Mr. Turow to start exploring economic models outside of traditional book publishing. Building an audience without the aid of a publisher’s marketing arm and without places like Barnes & Noble will be difficult, but the returns will be there for those willing to put in the effort. If Mr. Turow and the Author’s Guild only strategy is to try and stand in the way of consumers’ access to content, they will doom themselves to the same fate as the Russian authors.


  1. Originally posted on a Facebook group taking about these types of issues. DISCLAIMER: This post may contain some discussion about legal issues, but (1) it is not legal advice, (2) does not establish an attorney-client relationship, and (3) is not advertising for legal services. The full disclaimer can be found on the Disclaimer Page

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→ MLB Blackout Policy Under Attack In The Courts

A good summary of the current class action suit against MLB. It is not in-depth legal analysis, but it is good for getting you up to speed.

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→ Aereo coming to Raleigh

Aereo, a company that allows its subscriber to stream local television to their mobile devices, is coming to Raleigh. You can sign up at their website to be notified when the service goes active.

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→ Nilay Patel Argues that Instagram cannot Sell Your Photos

I disagree with his analysis.1 Nilay focuses on this clause:

To help us deliver interesting paid or sponsored content or promotions, you agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you.

and says that the “in connection with paid or sponsored content or promotions” language is limiting on what Instragram can do with your photos. My issue is that there is no definition of what “paid content,” “sponsored content,” or “promotions” really means. It is possible that Instagram could hide behind this language to make wider use of uploaded photos than Nilay suggests. Nilay further argues that “Instagram can’t sell your photos to anyone.” This ignores, however, the following clause:

[Y]ou hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service

In other words, Instagram might not be able to “sell your photos” but the license could be read as allowing it to freely license them. I believe that a license to an advertiser to use a photo is what most people think of when they say “sell photos.” I think it’s misleading for Nilay to say “Instagram can’t sell your photos to anyone, for example” without explaining the licensing aspect.2

The disagreement that Nilay and I have about the new Terms of Service should make it obvious that the new terms and the rights that they give Instagram are not particularly clear. Though some people might be viewing the terms through too harsh a lens, I think that Nilay’s take is much too optimistic. It will be interesting to see how this plays out.


  1. Two things: (1) this post is not a full analysis of Instagram’s proposed new Terms of Service and should not be interpreted as such, and (2) this post touches on copyright law but is not legal advice. If you have questions about copyright law, especially in relation to your photos, I suggest you contact your attorney. 

  2. As Nilay points out, a number of photosharing sites, including Facebook, have similar language. The main lesson from this whole ordeal is probably that people who post photos on various services should review the terms of service of all of those services. 

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→ Thomas Hawk on Compares Terms of Service

This might come as a surprise1, but Thomas’ analysis makes it sound like Google might be the most protective of photographer’s rights:

Google+’s TOS tends to provide photographers greater protection with a provision that your content there can be used for the “limited purpose of operating, promoting and improving our services, and to develop new ones.” Nothing about selling off your photos to third parties there, folks.

I am going to have to dig into these before I make my decision on what my “new Instagram” will be.


  1. A surprise because of Google’s reputation regarding privacy. 

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→ The Current Facebook Copyright Hoax

Just in case you get the urge to post that ridiculous Facebook message about how “your copyright is attached” to your Facebook book posts.

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→ Not the Attitude that I like to See

An writeup from a law school graduate who is working retail while looking for a job:

The customers that I have to deal with every day are not only annoying, but also incredibly stupid. It almost seems like being around stupidity makes it rub off on you. For example, there are customers that will “shop around” the store for a better, more favorable answer to their questions. When I’m asked about whether we have a certain product, and I inform the customer that we either don’t carry the product, or it’s currently out of stock, some people will go to another associate, and ask them the exact same question, only in search of a different answer.

This is both disappointing and disturbing. A sense of entitlement oozes from the piece. The author of this piece is not the type of person I would want working with me.

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