Quote of the Day - The making of a journalist: no ideas and the ability to express them.
Cleaning Up Property and Recovering MoneyTry this one on for size: read this article on CNN, and now read this summary on Oyez, a project of Northwestern University.
One by a journalist, and one by a political science professor.
Frankly, I don't understand the one on CNN. The other one makes perfect sense. So, rather than give a quick summary, I'll use Professor Goldman's words: "Does the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) require that a party liable for pollution be sued under CERCLA before seeking clean up funds from other liable parties?"
Better than a lawyer could have said it. 30 words, seven (or eight) of which he couldn't avoid. I didn't count the number of words in CNN's article, but you can bet that it's more than 30.
Anyway, an important decision is now pending before the U.S. Supreme Court. When a company voluntarily cleans up toxic contamination from its property, only in a few states can it sue to recover the money it spent. But not in every state, and not based on federal laws.
Only the federal government has that right, and unfortunately, the USEPA can't get to all sites to force a lawsuit against prior owners and operators.
Prediction? The Supremes will uphold the Fifth Circuit, and allow those companies who remove contamination to sue prior owners and operators for contribution.
NetForce Starts To Become A RealityTom Clancy started the idea, as far as I know. The future is now. Catching bad guys on the internet.
The real question is, who's watching what you're doing on your computer? Besides you, that is?
That's what the FTC wants you to know. They've filed suit against Sanford Wallace. He's the first, so we'll have to name this effort the "Wallace campaign."
Frankly, for FTC's first foray (how'd you like that alliteration?) into stopping the spread of spyware on the internet is too little, too late. But at least it's a start. Wallace's two companies, Seismic Entertainment and SmartBot net are also named in the lawsuit. Spyware logs your keystrokes to capture passwords, credit card numbers and other sensitive data. It's responsible for the delivery of pop-up ads, too.
What's really sad about this action is that the FTC can't even enforce federal laws to prevent spyware.
There are none.
They're having to use deceptive business practices laws instead. Come on, Congress, let's pass some bills. Get with the program!
Otherwise, NetForce will never actually happen. Doesn't that just play with your mind?
Insurance Policies Cover Heating Oil SpillsWith oil over $50 a barrel, heating oil prices are expected to increase dramatically this winter. Out here on the left coast, though, it's not so much of a worry. I just have to turn off the air conditioning.
My Mom, however, isn't happy. She lives on Cape Cod, and will have to spend more than she wants to. I think that's why she switched to gas heat.
She's also glad that she doesn't have this problem in Pennsylvania. But as homeowners, we all celebrate the decision that heating oil leaks don't fall within the pollution exclusion of homeowners insurance policies.
In this case, Marlene Epstein's heating oil tank ruptured in her basement and the oil leaked onto her neighbor's property. The neighbor promptly sued her, and Marlene's insurer, Atlantic Casualty Insurance Company, denied coverage and heaping insult on injury, filed a declaratory relief action seeking to avoid paying the claim.
Now there's a surprise - an insurance company that doesn't want to pay a claim.
But, justice won in the end, and Justice Ronald Buckwalter protected the community of homeowners who have heating oil tanks. And we all sigh with relief knowing oil contamination under our homes will be cleaned up.
Now about switching to gas ...
Telephone Yellow Pages Behaving BadlyWho uses hardcopy Yellow Pages anymore? In fact, I just threw mine away yesterday.
What a coincidence.
Today, a New York Judge decided that even though one of the two yellow page 800-pound gorillas (Yellow Book) behaved badly, there was no reason to issue an injunction protecting the other one Verizon Yellow pages.
Too hard to enforce, No likely ability to prove damages.
In a $15 billion dollar a year industry. Guess I could have been wrong about who uses Yellow Pages. Apparently, a lot of people do. Likely more than use the internet version.
Oh, that behaved badly part? Judge Weinstein found that Yellow Book "violated the Lanham Act by falsely claiming, as to national and some specific geographic areas, that the usage of Yellow Book's yellow pages was substantially greater than it actually was, as compared to the usage of Verizon's SuperPages." Verizon's directories were used more heavily than Yellow Book's, Weinstein found.
An Inalienable Right To Burn Your FieldThe battle over field burning rages on. Some Idahoans are still trying to figure out ways to stop it.
Idaho legislators are equally busy figuring out ways to allow it to continue. How many farmers do you figure are in that legislature? Answer: Lots, or at least a majority.
In Lawrence "Bud" Moon, et al. v. North Idaho Farmers Association, the Idaho Supreme Court upheld farmers' rights to burn their fields over a challenge that the practice constituted a nuisance and was unconstitutional.
Unconstitutional? Field burning? I've read the U.S. Constitution, and I can guarantee you that there's nothing in there about an inalienable right to burn your field. I don't know about the Idaho Constitution, but I'm pretty sure it's not in there, either.
Idaho being in the Ninth Circuit, the Idaho Supreme Court gave a tip of the hat to the Covington opinion. They said that where there is no loss of access or denial of use, there is no taking under Covington. Well, that makes sense - the farmers are being allowed to burn their fields, not denied.
Maybe the plaintiffs challenging the field burning meant that their rights to clean air were being taken. Yes, that is exactly what they argued: they have a sensitivity to grass smoke.
Well, that protected right isn't in either Constitution, either.
If they want to win their case, the environmentalists are going to have to find another legal theory; the Court didn't bite on this one. How about the Clean Air Act?
If at first you don't succeed, try a different forum.
Damn The Debates, Full Speed AheadAdmittedly, I'm not much for politics. Other than that last link, you will not find any political comments on this blog.
On the other hand, it fascinates many other bloggers. More power to them.
It's not that I'm not interested. Beyond the double negative, it's boring. It reminds me of what I do all day long. No, not Nader, just argue.
But there are some benefits to the debates. I guess. I don't really know - I didn't watch the vice presidential debates. I did catch some snippets from MSN video (what a cool feature).
What does a vice president do anyway?
Even assuming that the Veep contributes something to the federal government, it would appear that both Cheney and Edwards are better spoken than their counterparts, and neither one appears more qualified than the other, if the debates proved anything.
So, why not vote accordingly? Cheney for President and Edwards for vice president. Or maybe the other way around.
I'm not prejudiced. But no matter what you do, vote.
Get A License Or Do Not SampleThat headline is exactly the holding of Bridgeport Music and Westbound Records v. Dimension Films and Miramax Film. Great. Unlike most of my entries, I've started with the end instead of the beginning.
Upside down thinking. Well, at least you know how it turns out ahead of time.
Apparently, rappers were using parts of copyrighted songs in their Hip-hop tunes. I know, you don't like rap. Fine. Now that we've got that out of our system, just go with the flow here. I'll return to the intellectual aspect of this post in just a minute.
But first, a little rap greeting for you.
There. Don't you feel better now?
As you likely have heard by now, songs are copyrighted. But what about the individual sounds that make up those songs?
I mean, aren't individual sounds like letters in the alphabet (ABC's)? How can you copyright those?
Well, the Sixth Circuit decided that you can and they are. Copyrighted, that is. So now, rappers can't just blindly copy sounds from songs without paying the original artist.
That leaves a much larger question of how someone's going to be able to tell where the sounds come from. Admittedly, I don't understand rap, and don't want to. I definitely know I don't want to be in the rap copyright police force.
Just imagine listening to rap all day long with the express purpose of trying to figure out which artist gets paid for every three seconds of fame in a three-minute-long rap song.
But if they let me do it on the club scene, maybe.
But then again, NOT.
Did the 9th Circuit Just Open Pandora's Box?Justice Traynor once wrote, "The policy that precludes protection of an abstract idea by copyright does not prevent its protection by contract." Taking up where Justice Traynor left off, the Ninth Circuit recently decided Grosso v. Miramax Film Corp. (2004 U.S. App. LEXIS 18909), and the ramifications could be far-reaching. Of course, it's not the first time that the Ninth Circuit has issued a controversial decision. But if the Grosso decision holds up -- and that's not a "gimmie" either because the Ninth Circuit is the most over-turned circuit -- it certainly will be interesting to see what developments occur in IP law in the near future.
The general facts before the Ninth Circuit are as follows: Plaintiff Jeff Grosso claimed that Miramax stole his ideas when, after reviewing his screenplay, Miramax made the movie Rounders. Grosso filed a lawsuit in federal court, claiming that Miramax and other defendants violated his copyright in his screenplay The Shell Game or alternatively breached an implied contract to pay the reasonable value of the material Grosso earlier had disclosed to Miramax. The trial judge didn't see merit in the claims, however, granting Miramax summary judgment on Grosso's copyright claim, and dismissing Grosso's contract claim on the ground it was preempted by the Copyright Act.
On appeal, the Ninth Circuit upheld the lower court's ruling on the copyright claim, finding that the "two works [were] not substantially similar." Although the Court of Appeals acknowledged that "both works have poker settings," it went on to explain that "the only similarities in dialogue between the two works come from the use of common, unprotectable poker jargon." Having said that, the Ninth Circuit went on to reinstate Grosso's contract claim "because it alleges an extra element that transforms the action from one arising under the ambit of the federal statute to one sounding in contract." Emphasis is mine. You're probably wondering about the "extra element," right? Me too.
Well, under California law, a claim for breach of implied contract may be maintained when the recipient of a "valuable idea" accepts the information knowing that compensation is expected, and subsequently uses the idea without paying for it. Desny v. Wilder (1956) 46 Cal.2d 715, 733. Yep, the Ninth Circuit actually blew the dust off an old California Supreme Court opinion and gave it new life. Unfortunately, in so doing, it raised a lot of difficult questions. For example, what will be the bright line test for distinguishing "valuable ideas" from non-compensable ones? Since the trial judge already determined that Miramax's work was not similar to Grosso's screenplay, Miramax's alleged expression of Grosso's idea will not necessarily be determinative. What if Grosso can only show that Miramax produced a film involving poker after its representatives reviewed and considered The Shell Game? Will that be enough? How far will this go?
And what about damages? The Ninth Circuit cited Landsberg v. Scrabble Crossword Game Players, Inc. (9th Cir. 1986) 802 F.2d 1193, which involved the non-sanctioned use of a manuscript, as support for its decision in Grosso. While the Landsberg court acknowledged that contract damages are designed to give the non-breaching party the benefit of its bargain, or its equivalent, the Court of Appeals ultimately found that the defendant's profits were the best measure of loss for defendant's breach of contract -- not the fair market value of the defendant's use of the manuscript. So, then, in cases such as Grosso, is the trial judge supposed to disgorge any and all profits that Miramax made on Rounders even though the trial judge already found, as a matter of law, that the two works were not similar? What is the fair market value of a screenplay that is not used? What must recipients of other people's ideas now do to reduce their exposure to future claims of breach of implied contract? But I digress...and I really need to wrap this one up.
In any event, to get around Miramax's preemption argument, the Ninth Circuit explained that the "bilateral expectation of compensation" for an implied contract was the so-called "extra element" that distinguished Grosso from other preemption cases, such as Del Madera Props. v. Rhodes & Gardner, Inc. (9th Cir, 1987) 820 F.2d 973. A simple review of the Del Madera opinion suggests, however, that the Ninth Circuit's conclusion is result-oriented. For instance, unlike Grosso whose copyright claim failed, Del Madera was successful in its copyright claim and sought further damages for unjust enrichment. In reaching its decision that Del Madera's state claim was preempted, the Ninth Circuit concluded that the breach of an implied promise not to use copyrightable subject matter without permission was the "equivalent to the protection provided by section 106 of the Copyright Act."
How is that any different from the breach of an implied promise not to use Grosso's "idea" without permission, i.e., being compensated by Miramax? If Del Madera had brought a claim for breach of an implied contract, wouldn't the result still be the same? Can preemption be that easily defeated through artful pleading? Did the Ninth Circuit think this one through to the end? Perhaps the United States Supreme Court will help provide some answers if Miramax decides to take this battle to the next level.