May It Please The Court: Weblog of legal news and observations, including a quote of the day and daily updates

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Quote of the Day - The Big Print Giveth, The Small Print Taketh Away. - Chapter 7,485, Verse 1,976 by Robert Rosefsky
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"I agree." No, I Didn't Really Mean To, Though.

How many times have you signed up to use an internet service and just clicked on the "I agree" button? Lots, if you're like me.

But the real question is: do you read online agreements? Do I? Well, sometimes - especially if it's a bank or financial institution. But for the average, run of the mill website, admittedly, I don't.

Ok, so sue me.

That's exactly what happened to this guy. He signed up for AOL, put his email address book (1,500 addresses) online and ran into problems.

Then, the inevitable call to tech support hell, with the person on the other end of the line that speaks an entirely different version of English. Long and short: our hero lost his 1,500 email addresses when he followed instructions to delete a folder.

Whoops!

So, being a lawyer (who else?), he sued for $5,000. And won. At least so far. AOL promises an appeal, based on prior precedent. Others, though, have different ideas.

The lawyer filed the small claims case in New York, and the judge issued a written decision disagreeing with AOL's argument that venue was proper only in Virginia, where AOL's 91-page agreement says venue is proper.

As Mark Fass of the New York Law Journal noted in the Judge's opinion, "'The general policy of giving effect to forum-selection clauses must yield to the scheme enacted by the Legislature specifically to ensure that civil justice is meaningfully accessible to those seeking the adjudication of small claims,' wrote [Civil Court Judge Debra R.] Samuels in her eight-page decision, Scarcella v. America Online, 1168/04."

Did you catch that? An eight-page, written decision in a small claims case.

You've got to know that Judge knew she was going to be appealed.

As my disclaimer states, I'm not giving legal advice here.

But I may start reading the fine print a little more closely.

Nah.

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Thursday, September 30, 2004 at 14:38. Comments Closed (1) |

Taxing Tobacco To Tie Tongues?

Is it legal to tax a business and then use that tax money to discourage people to buy from that business?

Apparently so.

California has a tax that takes money from the $0.87 per pack tax from R.J. Reynolds and Lorillard Tobacco Company, and then uses that tax money to run anti-smoking advertisements.

The tobacco companies don't like the government spending their money to advocate quiting smoking. They claim it violates their First Amendment rights. But the Ninth Circuit didn't agree. "The implication of the tobacco companies' argument is that industries subject to an excise tax are entitled to a special veto over government speech funded by the tax," said Judge Raymond C. Fisher. The Court split, and ruled 2-1 in favor of California.

The dissent in the case started its argument with a quote from Thomas Jefferson (who I frequently quote here). The quote read: "To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical." The tobacco companies agreed with dissenter Judge Trott.

You're right. This isn't the end of the story. You can be sure they'll be an appeal to the Supreme Court, challenging the Ninth Circuit's ruling.

Tobacco wants to regulate the government's speech, and the government wants to regulate tobacco's sales. What do the rest of us want? Some want to smoke, and others don't want to - and don't want others to smoke, either.

The First Amendment says I can say what I want - and I usually do here. But there are many instances of the government limiting what can't be said. Now the Supreme Court will have to determine whether the government can use our money to argue against our own speech.

Next thing you know, the government will use my tax money to start a blog.

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Wednesday, September 29, 2004 at 09:00. Comments Closed (0) |

Once A Marine, Always A Marine

Here's an interesting website on the Viet Nam war. If you're interested in doing a bit of research, this is a good place to start.

Plus, it's got a great audio lead-in of actual, spine-tingling radio communications and photographs. OohRah!.

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Tuesday, September 28, 2004 at 16:51. Comments Closed (0) |

Justice Denied To The Blind?

Admittedly, I don't know the answer to the question I'm about to ask. Is this site accessible to the blind?

I'm not blind (although my vision is 20/700, I feel like it sometimes). And now, I have to wear reading glasses just to be able to see the computer screen. So, I kind of know, but not really.

But, I'm trying to check to find out. I've asked Access Now to let me know. Maybe they will, maybe they won't. I don't know yet.

But I do know that they lost their case yesterday. On a procedural technicality. The 11th Circuit Court of Appeals didn't like the way the case was presented.

In the trial court, Access Now argued that Southwest Airlines' website was a "place" of business, subject to the ADA. They lost.

The trial court said that a website is not a "place."

Then on appeal, Access Now argued that Southwest Airlines and its website were essentially a travel agency, and that agency constituted a "place" under the ADA. The Court of Appeal didn't buy it, and dismissed the case.

The real problem comes from the definition of "place" in the ADA statute. It doesn't list websites as "places." A website is a lot like a place, but it's not.

Southwest.com gets half of its business - $500 million a year - from its website, but during the pendency of the suit, the company redesigned the website to be more "access friendly."

The 11th Circuit said these cases are important, but this wasn't the case to do it with.

I guess Access Now will have to find another website, and another Plaintiff. Meanwhile, maybe more website owners will try to do what I did.

Find out, then fix it.

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Monday, September 27, 2004 at 23:54. Comments Closed (0) |

It's Only Rock and Roll, But I Like It

Recording live concerts has been the bane of rock groups ever since tape recorders were invented. Now they're doing it with minidisk cameras.

Everyone's got a perspective on how it's supposed to work, and who's supposed to pay for it. Rock groups have tried to stop it by getting the "bootleg" law enacted.

But, it looks like it's going to be going on for awhile longer.

Judge Harold Baer, Jr. out of the U.S. District Court for the Southern District of New York nixed it.

The bootleg law, that is.

He overruled the law, saying that even though it was drafted with the "same spirit" as other federal copyright laws, it didn't meet statutory criteria. Baer said that while federal copyright laws protect property for a fixed period of time, the bootleg law had no such time limit, however, and instead granted "seemingly perpetual protection" to the live performances.

He also thought that copyright laws cover fixed items, such as books and records, not fluid things like live performances. Call me silly, but doesn't the recording industry already enjoy copyright protection for records it sells of live performances? That argument likely won't fly on appeal.

My logic didn't work for Judge Baer. The ruling isn't available online yet, so you can check here next week. Just search for Jean Martignon or her company, Midnight Records, where you can still buy live recordings by mail or over the internet.

As you can imagine, the Recording Industry Association of America was displeased with the ruling. According to the AP, the decision "stands in marked contrast to existing law and prior decisions that have determined that Congress was well within its constitutional authority to adopt legislation that prevented trafficking in copies of unauthorized recordings of live performances," quoting Jonathan Lamy, a spokesman for the RIAA.

Well, maybe so, but that's not the case right now.

So, buy 'em while you can. Either Congress or an appellate court will soon fix the problems identified by Judge Baer.

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Sunday, September 26, 2004 at 13:48. Comments Closed (1) |

Inquiring Minds Don't Want To Know

Amber Melville-Brown, a media law lawyer at David Price Solicitors and Advocates, puts it this way, as only a Fleet Street Englishwoman could: "A balance has to be struck between ... the right to publish unauthorised flab, cellulite and sweat patches; and the rights of spoilt, prima-donna celebrities only to be photographed when they are good and ready. The press appears perfectly at ease in this task, little fearing that recent decisions tie their hands too tightly."

Yep, you got it: the press in Europe lost their right to publish celebrity photos if the stars are just out wandering privately in public.

Huh?

Exactly. That bastion of celebrity-protecting judges, the European Court of Human Rights (I know I've been dying to try a case there) decided that these type of photographs of the Princess Caroline of Monaco shouldn't be published.

You know, the kind grabbed by the paparazzi when famous celebrities are caught off guard, just to make them appear more like the rest of us who don't get our photos in the newspapers on a regular basis.

Not that I'm worried about that.

Newspapers complain that the ruling infringes their right of free expression. Or did they really mean right to a profit?

I'm not buying it. In fact, I can't ever recall buying a tabloid newspaper. It just doesn't interest me, but apparently, I'm in the minority. Otherwise, there wouldn't be so many trashy tabloids out there.

Now, however, it appears that there may be less of them across the pond very soon.

My heart breaks. Who cares?

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Saturday, September 25, 2004 at 11:17. Comments Closed (0) |

California Considers Tighter Air Emissions

You may or may not know that the California Air Resources Board has is considering a vote (webcast) today on controversial regulations to reduce vehicle emissions blamed for global warming. Actually, they're considering it right now.

Several states are expected to enact the same standards that California may adopt this morning. According to CNN, California is the only state that can set its own emissions regulations since it began doing so before federal standards were set. Other states must adopt federal standards or California standards.

The regulations, if enacted, require cuts in greenhouse gas emissions by up to 25 percent and other technological changes for vehicle emissions by 2009. The staff report favors a positive vote on the proposal.

I'm listening to the webcast now, and will let you know when the vote becomes final.

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Friday, September 24, 2004 at 13:05. Comments Closed (2) |

Mr. Ed Rolls Over In His Grave

"A horse is a horse, of course, of course,

but the Vehicle Code does not divorce

its application from, perforce,

a steed as my colleagues said.

"'It's not vague,' I'll say until I'm hoarse,

and whether a car, a truck or horse

this law applies with equal force,

and I'd reverse instead."

That is Justice J. Michael Eakin of the Pennsylvania Supreme Court, dissenting to this majority opinion, that ruled PA's DUI law doesn't apply to people on horseback.

Obviously, he didn't agree.

Three men were arrested for drunken driving, but two were on horseback. The prosecutors argued that Pennsylvania's laws applied to them, but the majority of the PA Supreme Court disagreed, found that the law was vague, and reversed their conviction for drunken "driving."

Justice Eakin made his point, but lost this round.

What about the Amish buggies all around Pennsylvania? If the driver is drunk (admittedly a stretch), does that mean that because they're driving a horse-drawn carriage that the DUI laws don't apply?

This case isn't going to ride off quietly into the sunset.

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Thursday, September 23, 2004 at 11:04. Comments Closed (0) |



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