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 - There is so little difference between husbands you might as well keep the first.
He and She Were Married, Now He's a She. Yikes!I predicted something like this would happen. Paul Spina and his wife, Sharon, have been married for 22 years. They have two children.Paul recently went to Thailand and had a sex change operation and came back as Paula Spina. Now, his wife wants an annulment. There's a surprise. It is admittedly confusing. But, they turned to the Courts to work it out. Apparently, Sharon lost the first round to Paul/Paula. Now, Sharon has appealed. Briefing is being submitted, and we'll keep you informed. We haven't heard the last of this one. What's your vote? Court Makes Your Email Open to CopyingHow private is your email? Under the federal Wiretap Act, you'd think it's pretty secure.Think again. The First District Court of Appeals in Boston ruled that an email provider can copy your emails and read them. Interloc sold rare and used books, and as part of its services to dealers, offered them email accounts. Apparently the Court approved copying emails even if the company is trying to gain a commercial advantage - they copied incoming emails from Amazon, trying to find out what books their customers were looking for. Huh? The Court upheld the dismissal of an indictment against Interloc's vice president (the company is not in business anymore, but its successor is also a rare and used book seller where you can still give them your email address). Yep, even after two other people involved with the scam pled guilty, obviously thinking the Act meant something. To me, the Court's decision is just wrong. I'm not the only one. In a dissent that's twice as long as the majority opinion, Judge Kermit V. Lipez said the other two judges misread the law and that the ruling "will have far-reaching effects on personal privacy and security." He also wrote that the 2-1 decision "would undo decades of practice and precedent regarding the scope of the Wiretap Act and would essentially render the Act irrelevant to the protection of wire and electronic privacy." Others are unhappy too. "This decision makes clear that the law has failed to adapt to the realities of Internet communications and must be updated to protect online privacy," said Kevin Bankston, an attorney for the Electronic Frontier Foundation, a privacy advocacy group. At least one other blog, The Rutherford Institute commented on the ruling. On a somewhat related topic, in response to the FBI's attempt to open up the Act to allow even more copying of emails, there's a Petition to the FCC to stop that kind of expansion. You can't sign this petition, but you can write the FCC. That won't address the Court's opinion. For that, you've got to write your representative or senator. God Bless AmericaA couple of anniversaries of note. The Big One of course. Happy Birthday America.Plus, my grandfather, James Burton Walker, God rest his soul. Happy Birthday Grandpa. As many grandsons would say, a finer man I have not met. In fact, he gives me one of my standard lines in closing arguments. "The judge has given you the law, and you now understand the facts of this case. But before the judge instructed you, you already knew what was right. Your grandfather and your grandmother, as well as your parents and many others in life had already taught you. You know what is right and wrong, and we're asking you to make the right decision today." My grandfather was a proud American, and I as equally proud of him. He would always joke that the entire country celebrated his birthday. Then, there's Ann Landers too, God rest her soul. There's also Neil Simon, Gina Lollobrigida, President John Calvin Coolidge and Louis B. Mayer, God rest their souls. For those who died on the Fourth of July, there are Presidents John Adams, Thomas Jefferson, and James Monroe, as did modern-day lover of bucolic Americana, Charles Kuralt. Also Madam Marie Curie, who died from leukemia caused by the radiation she researched to discover radium and polonium and in isolating radium. We also celebrate many other fallen heroes, who gave their lives so we could live in a free democracy. I can write whatever I please (today is MIPTC's 11 month anniversary - just one month shy of a year's worth of entries), you can read whatever you please, and we both can say whatever we please. God bless America, and all of those who gave their lives in the service of their country. Thanks, from one who briefly served his country, but will never understand that ultimate sacrifice that you gave. The Circus Otherwise Known as LitigationCalifornia has the 5th or 6th largest economy in the world. That's saying a lot, given that we're bigger than France, Italy and China.Well, Canada, too, but that's not saying a lot. Heck, we exported over $27 billion in goods in 2002, and more last year. But, we may be about to export an unlikely service: litigation. Earlier this week, the California Supremes voted unanimously to hear the case of Snowney v. Harrah's Entertainment. In doing so, the Supremes rejected 1981's Circus Circus Hotels Inc. v. Superior Court, 120 Cal.App.3d 546, in which the 4th District ruled that advertising and toll-free numbers do not confer personal jurisdiction allowing suits in California. The justices called the 23-year-old ruling a "narrow interpretation" that was "unwarranted." That's right, the seven-ring circus of justices are going to determine whether Harrah's and other hotels such as Circus Circus in Nevada can be pulled over the border to the circus otherwise known as California. OK, maybe too much clowning around in that last paragraph, but it sounded good. Or maybe you'll like this sound better. Harrah's advertised over here in California via the web. Well, who doesn't? Reading through the appellate court opinion gives us little clue over the basis for the claim other than unfair competition and false advertising to "high end" customers. Seems that Snowney sued seeking class action status on behalf of all California residents hit with a $3-per-night energy surcharge while staying in Las Vegas, Reno or other gambling towns. He says we were enticed by advertising both on the web and billboards. A three-dollar charge because we saw ads on billboards? Doesn't sound to high-end to me. A companion case involving telemarketers is something of the same thing about jurisdiction over a Nebraska telemarketer. Neither Harrah's nor the Nebraska telemarketer believe they should be here in California answering to California courts. There are many Californians who think the same thing, but the Supremes are about to decide whether the long arm of the law can stretch to other states based solely on advertising in California. Interesting to lawyers (see it in color), but how does this affect you? Well, if you're out of state, it might if you advertise here, or if you advertise in other states, you can expect the same treatment there. Long story short? I don't know. Stop advertising. Be ready to get sued. I'm guessing we're going to have litigation as a new export. Maybe we can ship some lawyers out, too. Now there's an idea. Farming Kentucky Bluegrass in Idaho, Not IowaFirst, you're going to have to get over the fact that Kentucky bluegrass is grown outside of Kentucky. Actually, it's grown in Idaho, by farmers.Let me say that again: Idaho, not only in Kentucky. In fact, Kentucky Bluegrass is really from Europe, Asia, and specifically Algeria and Morocco. Sacrilege, you say? I just report 'em, I don't make this stuff up. Check out the links. Ok, with that warning aside, you're ready for the rest of the story. Seems that an environmental organization, Safe Air For Everyone, was unhappy with the Idaho farmers' practice of burning straw in the fields that is leftover from bluegrass seed harvesting. So, like all red-blooded Americans, they sued. But, they sued under RCRA, the Solid Waste Disposal Act, claiming that the bluegrass residue (aka straw) was a solid waste, and had to be disposed of properly, and not burned. Seems the Ninth Circuit didn't agree. They think grass is, well, grass. Not waste. In the lawsuit, the farmers argued that they reuse the straw, returning nutrients to the soil, that allows them to grow more and better bluegrass in the future. That was the argument that the Ninth Circuit bought. They disagreed that the straw was actually waste, subject to regulation under our environmental laws. I lived on a farm in Iowa (not, not Idaho, Iowa). The farmers' argument was the same pitch I heard there in Hudson. Except the farmers there didn't burn straw, they gathered it into hay bales and sold it. To livestock farmers. But not in Kentucky, of course. The Old Man Lectures on CampfiresYep, I'm a Boy Scout. Actually, an Eagle Scout, Order of the Arrow and God & Country award holder. A regular Dudley Do-right.That's why I was surprised by this article, where the federal government is seeking $14 million for a fire caused by unsupervised Boy Scouts, left alone overnight. They started fires to keep warm (go figure), but the fires smoldered after they left and caused a fire that burned 14,000 acres in rural Utah. That's not how we did it. We were taught to douse campfires with water. They must be teaching it differently now. Maybe it's the new math. Not Surprisingly, You Get What You Ask ForISPs are not directly liable for copyright infringement by users who posted copyrighted photographs. So says the Fourth Circuit Court of Appeals in a recent holding.Wouldn't have been how I presented the case, but the ruling makes sense. If the copyright holder really wanted to win the case, he might want to have presented the case on contributory infringement, which I've written about before, a la Napster, and the precedent for Napster. Here's the case opinion if you want to read it. Just goes to show you, you get what you ask for. Just don't ask for the wrong thing. You're likely to get the wrong answer. Seize Goods At the Border Without LitigationStop 'em at the border. Yep, you can use the newly named U.S. Customs and Border Protection Agency to stop the importation of goods that violate your trademark or copyright.Without filing a lawsuit. You first must file your trademark or copyright with the USCBPA and get it recorded. Get started here, or contact your local, favorite attorney. Stops 'em cold at the border, before the goods even hit the market, and before you have to file suit. Of course there are some exceptions. You must be a U.S. citizen or legal entity to enjoy the protections (an exception that doesn't apply to copyrights). You also can't have registered your trademark abroad. There are a few others, too, so be aware. But Customs claims they aggressively protect your rights, and offer online trademark applications and copyright applications. Customs - not a judge- decides whether goods infringe. The offending importer can appeal an adverse Customs decision, but the goods remain impounded during the appeal, and the decision to impound comes quickly when compared to litigation. Here are the rules and regulations to follow. But don't just file and record your trademarks and copyrights. You have to take an active role with Customs and provide information in order to exercise your rights. They won't do all the work for you. It's a lot less expensive than litigation, and a lot quicker. Go get 'em.
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