Quote of the Day - After two years in Washington, I often long for the realism and sincerity of Hollywood.
Google Lobbies Washington, Shades Of Mr. Smith
Somewhere between the Green Goddess dressing and ants, Mr. Smith went to Washington. Well, not actually. Google went to Washington. The references to the recipe and the ants is on Google's blog, where the announcement was made.
Google has hired a lobbyist.
"We've gone uptown." Or maybe downtown, depending on the way you view the distance from Mountain View, California (Google's HQ) to D.C. Their man is Alan Davidson, and not surprisingly, when you click on the link to his name in Google's blog post, you get, well, a Google search for him. (Check the format of that search if you're still a Google neophyte - which is to say you just plug in the name "Alan Davison," even without quotes).
Google reports its mission is to "Defend the Internet." No, if you clicked on that last link, they're not defending comic books. Google identifies three main topics that deserve their money: (1.) Net neutrality; (2.) Copyrights and fair use; and, (3.) Intermediary liability.
Google reports that the "Internet policy world is fluid, so our priorities will surely morph over time." Not bad for a seven-year old company.
Delaware First To Address Protecting Anonymous Internet Speech
With a hat tip to the So Cal Law Blog, we may have found our answer to whether bloggers can speak anonymously, apparently the first time any state supreme court has answered the question. In Delaware, at least, the answer is yes, with some heavy reliance on the U.S. Supreme Court. The decision creates a new standard for evaluating anonymous speech on the internet, and likens it to old-fashioned political pamphleteering. The case involved an anonymous blogger who posted on a blog allegedly defamatory statements about a city councilman and his wife.
Initially, the trial court applied a good-faith standard, set so low that it resulted in the trial court granting subpoena power to the political figure who claimed to be defamed. The trial court was set to allow the political figure, a city councilman in the town of Smyrna, Delaware, find out by subpoena the name of the anonymous blogger who posted allegedly defamatory statements about the councilman. The allegedly defamatory statements can no longer be found on the site (see anonymous blogger link).
The Delaware Supreme Court rejected the trial court's low standard, and instead set the bar fairly high to obtain an anonymous blogger's identity: "We accordingly hold that before a defamation plaintiff can obtain the identity of an anonymous defendant through the compulsory discovery process he must support his defamation claim with facts sufficient to defeat a summary judgment motion." That means that there must be no dispute of a material fact before the defamation plaintiff can even seek the name of the assailant, meeting each element of a seven-part test (see page 22 of the court opinion in the second link above).
In other words, the plaintiff must prove his entire case while the anonymous blogger can watch, doing nothing. That expensive process to prove your case first will surely deter these lawsuits seeking to stifle internet speech. At least in Delaware.
Insurance Company Drafted Its Own Exception To An Exclusion
Tennessee has recently decided that work performed by subcontractors on a project can trigger the general contractor's insurance policy, much to the dismay of Traveler's Insurance Company. Traveler's tried to avoid liability based on this theory that the general hired all the subs, and therefore their work fell within the policy exclusion for faulty workmanship.
Perhaps Traveler's forgot to read its own policy. The Court noted that it wasn't a judicial ruling or legislative statute that mandated the result - it was the insurance company itself. The Court dug into the insurance industry's amendments to its own policy forms, and found that in 1986, the industry itself changed this provision that excluded work for faulty workmanship arising out of the contractor's work.
It added this language to clarify the exclusion, which reads: "This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor."
The general contractor surely thought it was just desserts to have its insurance company hung out to dry by language it drafted.
California's Privacy Law Struck Down
As MIPTC reported to you before, California can't seem to protect your privacy. What appeared to be a split-the-baby decision in the Ninth Circuit was returned to Judge England for further proceedings to see if there was any portion of California's Financial Information Privacy Act that remained valid.
Bankers can now sell your private information to their "affiliates" (companies owned by banks but not in the banking business), but it appears they must get your permission first.
It's up to you whether you check that little box.
Coast To Coast Internet Radio Program Addresses Diversity In The BlogosphereOur new internet radio show Coast to Coast on the Legal Talk Network, with my Co-host Robert Ambrogi, takes on an important issue about diversity (or lack thereof) in the legal blogosphere. Are the ranks of women, and minorities being heard? Are they getting the recognition they deserve? Our special guests include the inimitable Lisa Stone, originator of BlogHer, a blogger and a journalist whose work has appeared in the NY Times and the LA Times, Attorney Sean Carter , a syndicated writer, blogger and legal humorist who writes Lawpsided, and Monica Bay, editor in chief of Law Technology News and who writes The Common Scold. Give a listen here, click on the podcast icon below or MIPTC's RSS podcast feed.
Ninth Circuit Passes On Sanctioning Judge
Not once will you see The Honorable Manuel Real's name in this opinion, but everyone understands it's about him. The papers certainly understand the references. Judge Real is the most-reversed judge sitting in the Ninth Circuit, a questionable honor passed to him after Andrew Hauk passed away.
Although the Ninth Circuit's opinion passed on sanctioning Judge Real, not everyone believes it should have. Skip down to Judge Kozinski's dissent to read why not. Lawyers dare not cross Judge Real in his courtroom, and evaluating judges so far have not, either. Congress passed the responsibility to supervise their own to the Judicial Council, but how effective is that supervision?
Do you agree with Judge Kozinski? Will Congress retake its delegation?
Iowa Law Professor Sees Red Over Pink
From now on, it will just be Floyd, not Pink Floyd. And you can forget that bumbling Inspector Clouseau (link has music), they'll be no more Pink Panther, either, thank you very much. And lawn decorations, that's a definite no go, as well. Corfu, Greece better get out a new can or two of paint. Professor Steve Pink should change his last name. Pretty in Pink just isn't very ducky anymore. Thank God the Pink Bloque has already shut down. Breast cancer? That's so ... pink, isn't it? Pink Practice, working with the LGBT community in London must be very confused.
You see, a recently added law professor at my alma mater has declared war on pink. Pink in men's locker rooms, that is. To be specific, pink in the visiting men's locker room at Kinnick Stadium, home of this year's somewhat lackluster Iowa football team.
I don't understand what the fuss is all about. Hayden Fry, famous Iowa football coach, also a psychology major, started the tradition of using pink in the visiting team's locker room because the color was soothing, and he thought it would help his team win. And win it did. But Assistant Professor Jill Gaulding thinks it's demeaning to women. When she appeared in front of a University committee, she said, "I want the locker room gone."
Perhaps it would have been helpful to Professor Gaulding if she had done some research first. Coach Fry has not been known as a friend of women. In one of his major faux paus, he mentioned to a newspaper reporter that when he was in college, he could find "any little dumpling to do his laundry." Although he later apologized for the statement, what wasn't reported in that last link is the support he received. Women across Iowa started wearing buttons that proclaimed, "I'm one of Hayden's little dumplings." Certainly an unprofessional and inappropriate statement, but equally surprising the amount of support it generated. As one blogger noted, "It's the Big Ten." We take our football very seriously. Outside of Iowa, she may have received some support. Unlikely she will be at any home games.
The crusading professor knows how to ask for cooperation (go to top of page 5), so perhaps that would have gone over better with Iowa fans. What's your vote?
They Sell Swampland, Too
If your partner occupies partnership property, can that partner "pay" the partnership less than fair market value rent? You probably know the answer, but might be surprised to hear the first part of court's resulting answer: "Remarkably, we have found no case squarely addressing this precise question. [Fn. omitted.] We are satisfied, however, that the answer is a resounding 'No.' "
The partner who occupies property that belongs to the partnership must do so in a manner that provides income to the partnership as if the property had been rented to a non-partner on the open market. That just makes sense. That's the whole idea behind the fiduciary relationship that partners owe to one another.
The property-occupying partners in the case linked above claimed that they had no obligation to collect fair market rent (from themselves) because the partnership agreement did not require them to do so. They also claimed that California's statutory scheme limited their responsibilities to only those enumerated in the statute. Not surprisingly, this specific factual situation is not spelled out in the statute. The trial court bought both of these arguments, but they didn't work on appeal. Another argument that fell flat was the claim that the partnership property was held for purposes of appreciation and eventual sale. No matter what they argued, the appellate court just wasn't buying.
The case reads like a soap opera, including this gem of an argument from the losing side: the property-occupying partners claimed that the non-occupying partner waived his right to claim a breach of fiduciary duty "merely by neglecting to demand that his partners refrain from such breaches." In other words, the argument goes something like this: You can't come after me for something I know I can't do if you forget to tell me that I can't do it.