Quote of the Day - No one bill will cure the problem of spam, ... It will take a combined effort of legislation, litigation, enforcement, customer education, and technology solutions.
Tired Of Spam? Here's A 100% Solution: Sendio's I.C.E. Box
At the end of June, I went to LegalTech West and ran into a vendor, Sendio, Inc. whose display banners promised 100% no spam in my inbox.
"Right," I thought to myself as I walked by. "That's impossible." Like any lawyer, I see shades of gray, and this bold claim was certainly anything but.
So, I went up to the booth and asked a few sarcastic questions, as regular readers of MIPTC can readily imagine. I just didn't believe the claim.
"Prove it," I said.
The company rep, Nancy Chaisson, explained that their product, the I.C.E. Box is based on "verification" technology, a system that sends queries back to the email sender to confirm that the sender is a real person and not a spammer. You've likely gotten one or two of them yourself, if you've been using email for any length of time.
You know the type of emails I'm talking about: those snippy little emails that say something like, "I'm really concerned about spam and I'm making an effort to ensure that you intended to send this email to me. Respond with this code and your email will get through."
"Ugh," I thought. Just what my clients need - an email that says you can't communicate with me. I didn't want anything to stand between me and my clients, especially an impersonal email like that.
Nancy had an answer for that issue, too. She said their system would scan our firm's contact list as well as everyone's outbox and compile a list of "approved" senders. With that list programmed into the I.C.E. Box, everyone on our list would get through without verification. "But what about new clients?" I asked. As long as we send an email to the new client, they're automatically added to the list and all of their emails get through.
To prove me wrong (and perhaps garner publicity), Sendio offered to install their box on our server system. So here's my disclaimer - we got the box for free, and we're the test dummies.
The installation went smoothly, and spam emails dropped practically instantaneously. Now, the system sends each member of the firm an email first thing in the morning, and provides each of us with a link to administer the system individually. With the web-based interface, we can decide which emails to allow through and which to drop. Sendio's training was very helpful and the company very responsive to our questions. Our firm members saw the installation as seamless and without the glitches typical of software and hardware installations.
Sendio's made a believer out of me, and I heartily recommend their hardware. The 100 or so spam emails I received every day are now gone from my inbox. The couple of hours that I spent dealing with that trash just disappeared.
That reduction alone is worth the cost of the I.C.E. Box. Now I get to spend my time productively responding to client emails, not wondering whether I may have just won a cruise or inherited $50 million dollars.
Lawyer2Lawyer Talks To Legendary Trial Attorney Gerry SpenceAttorney Gerry Spence has practiced law for over fifty years, has never lost a criminal case and is the author of sixteen books. On this week's Lawyer2 Lawyer please join me and my fellow Law.com blogger and co-host Bob Ambrogi as we talk to Attorney Spence about his most prominent cases, life as a trial attorney, his founding of the Trial Lawyers College, his opinion about law school, stepping into the world of blogging and his mission to represent the poor, the injured and the forgotten. Listen and find out why he says "Lawyers disappoint me."
Read Those Mediation Agreements Carefully: Confidentiality Has Exceptions
Just about every lawyer I know agrees on one thing: There is an exception to every rule. Even ones that are supposedly "absolute." There's been much ballyhoo lately about the confidentiality of mediations. There's a rule prohibiting the admission into evidence discussions held in course of mediation.
So you know what's coming next, don't you?
Right. The exception.
So let's get to the setup. Thresiamma Thottam's three children, Peter, Jameson, and Elizabeth, disputed the distribution of assets from her estate after her death. They were each co-trustees of her trust, and agreed to mediation. So far, so good.
Then they signed a confidentiality agreement prohibiting matters discussed in the mediation from being used in future litigation "except as necessary to enforce any agreements resulting from" the mediation.
The big print giveth, and the small print taketh away.
During the course of the mediation, Peter, Jameson and Elizabeth reached an agreement and created a chart detailing how the properties owned by the trust would be split up. They each initialed the chart. When Peter tried to enforce the contract in Court, the court would not admit the chart into evidence and ruled against Peter.
The appellate court in Thottam v. Thottam in the Estate of Thottam case reversed the trial court. It ruled under California Evidence Code section 1123(c) that a written settlement agreement prepared in the course of mediation is admissible if all parties agreed in writing to its disclosure. Although the three children expressly agreed not to disclose matters discussed in mediation, they did agree to the exception noted above.
If the trial court had admitted the chart, the appellate court reasoned, it would have corroborated Peter's testimony regarding the existence of a written agreement and undermined his siblings' claims that he breached his fiduciary duty in handling the real property. The appellate court ruled its exclusion prejudiced Peter, and reversed the judgment against him.
While you may think discussions in mediation are completely or absolutely confidential, you may have agreed otherwise.
It always pays to read the fine print.
Update: September 24, 2008. James Thottam of Texas called to let me know that he and his sister Elizabeth dispute the appellate court's finding that they reached an agreement, and have filed a Petition for Certiorari to the California Supreme Court to overturn the ruling. They are looking for amicus briefs, if any lawyer is willing to file one. A copy of the "agreement" is contained in the Peition, if you'd like to see it.
When You Define 'Livestock,' Would You Include Dogs?
Let's take a trip for a moment to the mountains of Idaho, and go back in time nearly 30 years. In 1973, Earl and Iona Monroe, owners of a plot of land along the Middle Fork of the Clearwater River in Idaho, including a twoacre tract, granted the United States a scenic easement under the Wild and Scenic Rivers Act, 16 U.S.C. sections1271-1287.
The purpose of the easement is to allow the U.S. Forest Service "to administer such land to protect the scenic, recreational, geologic, fish and wildlife, historic, cultural, and other similar values [of the region] and to prevent any developments that will tend to mar or detract from their scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values . . . ."
Then, in 1989, Ron and Mary Park purchased the tract of land. At the time there was a chicken coop there. The Parks requested and the Forest Service approved modifications to some of the existing buildings and also approved the addition of horse stalls. In 1990, the Parks received approval to use a portion of their home as a craft and hobby shop. A year later, the Parks received approval to run a bed and breakfast from their home. In 1997, they began advertising that they were offering a dog training and kennel business, Wild River Kennels, on the property.
That's when the Forest Service got fed up and put their foot down, so to say. They told the Parks to remove the kennels, and when they didn't, the Forest Service sued in the case of US v. Park. In their defense, the Parks argued that the "senic easement" allowed livestock, and dogs were livestock. So you're not missing any information, the easement reads, in part:
The Parks "retain the right to use the easement for general crop and livestock farming and for limited residential development consistent with applicable State and local regulations..."
There you have it.
Not so fast, you say. Maybe cattle, horses, pigs and perhaps goats are livestock, but dogs? That's the Court's initial reaction: "Despite a gut inclination that the answer might be "no," resolution of the issue is not so clear, thus precluding summary judgment at this stage of the proceeding. As it turns out, the term 'livestock; is ambiguous at best and much broader than the traditional categories of horses, cattle, sheep, and pigs."
In fact, we get quite a lesson in the definition of livestock. The Court observes, "The term "livestock" stems from the Middle Ages, when it was used as a measure of wealth or to refer to property that could be moved, particularly to a market for trade. Online Etymology Dictionary, http://www.etymonline.com (last visited July 25, 2008). Later, the term began to be used in a more limited sense to describe cattle. Id. Today, the dictionary definition of 'livestock' is sweeping, capturing every type of domesticated animal. For example, Merriam Webster's Collegiate Dictionary defines 'livestock' as 'animals kept or raised for use or pleasure; esp: farm animals kept for use and profit.' MERRIAMWEBSTER COLLEGIATE DICTIONARY 728 (11th ed. 2003). The Oxford English Dictionary is in accord and defines "livestock" as 'animals, esp. on a farm, regarded as an asset.' THE CONCISE OXFORD DICTIONARY OF CURRENT ENGLISH 797 (9th ed. 1995).5 Even Black's Law Dictionary defines 'livestock' broadly as 'domestic animals and fowls that (1) are kept for profit or pleasure, (2) can normally be confined within boundaries without seriously impairing their utility, and (3) do not normally intrude on others' land in such a way as to harm the land or growing crops.' BLACK'S LAW DICTIONARY 953 (8th ed. 2004); see also Levine v. Conner, 540 F. Supp. 2d 1113, 1116 (N.D. Cal. 2008) (analyzing the dictionary definitions of the word 'livestock' and observing that 'the scope of domestic animals used or raised on a farm can potentially extend to guinea pigs, cats, dogs, fish, ants, and bees.').
"Despite the broad definitions in the dictionaries, we recognize that 'livestock' has been used to describe a more limited set of animals such as cattle, horses, and pigs. The government calls our attention to § 25-1101 of the Idaho Code, which limits "livestock" to a narrow set of animals, namely, 'cattle, horses, mules, or asses.' Idaho Code § 25. That section, however, pertains to brands and identifications affixed to the hide of an animal. Not surprisingly, this provision is not the only one in the Idaho Code that defines 'livestock:' § 25-3601 states that cassowary, ostrich, emu, and rhea are 'livestock' and § 25-3701 adds fallow deer, elk, and reindeer to the list. Idaho Code §§ 25-3601, 25-3701."
Wow. That's a fairly comprehensive list of livestock, but none of the definitions offered by the Court include dogs.
The lower court held that the Parks' dog kennel business was a prohibited commercial activity. The Ninth Circuit observed further that "[a]lthough the Parks are running the kennel for profit, this fact does not preclude the operation from also being a permissible livestock farming use. Farming surely can be undertaken for profit and the easement expressly states that the grantors, now the Parks, 'retain the right' to engage in 'general crop and livestock farming.' This right was retained without exception. The only consistent way to understand the restriction is as prohibiting commercial activity except to the extent that it qualifies as 'general crop and livestock farming.'"
I've been around farming for a bit, and I wasn't aware that there was much about it that was profitable. I've also seen lots of dogs on farms, and some fairly helpful dogs at that. Some dogs have rescued farmers from falls under tractors and some even herd sheep and other animals. As a former gentleman farmer and now a lawyer, I'd have to agree that dogs can be livestock.
Besides, if the Parks can operate a bed and breakfast out of their home, why can't they have dog kennels?
No Honor Among Thieves: Black Hat Conference Press Room Hack
To be completely accurate, the Black Hat Conference is a place where corporate security professionals and hackers meet up in a moment of hopeful Utopian neutrality, but it appears all was not in order at its most recent conference in Las Vegas. According to The Associated Press, three French journalists from the Global Security magazine allegedly hacked into a supposedly off-limits private secure network server for the conference's press room.
Hackers hacking? Who woulda thunk it?
Seeking to embarrass tech reporters who failed to login securely to the network, the journalists supposedly captured the login credentials from two other journalists from eWeek and CNET News. They then allegedly sought to post them on the infamous Wall of Sheep (aka "shame"), a "forum to embarrass security professionals who don't follow proper security procedures themselves," according to the AP. Once your name is listed, apparently, other security professionals know you just don't have the chops to avoid a hack and protect your company's network.
But their plan, if you can call it that, backfired.
Not only did the journalists' credentials get revoked and they found themselves ousted from the Black Hat conference, but also it appears Global Security's sponsorship of the conference is over, even though the magazine's logo still appears on Black Hat's sponsorship page. Organizers of the conference terminated their relationship with the magazine.
To top it off, the three journalists are infighting, with two claiming no knowledge of the hack and instead blaming a third. Marc Brami, director of the magazine's parent company, told the AP that fellow journalist Mauro Israel was responsible for the hack and that he and Dominique Jouniot didn't know about it. "I can't explain why he'd [Israel] do that," Brami said to Associated Press Technology Reporter Jordan Robertson. "He thinks it's some kind of game for him. I'm very angry with him. I've had a partnership with Black Hat for three years."
Then, at DEFCON 16, the hackers-only sister conference to Black Hat, the alleged hackers/journalists called a press conference, but then no-showed and failed to explain the situation from their perspective. An InformationWeek blogger, George Hulme, sees no shame in their hack, but conference organizers are none too happy. EFF lawyer Kurt Opshal is advising conference organizers whether they can pursue a civil action or criminal charges against the three journalists.
It's an interesting view of Karma.
Postscript: Opshal's had a busy couple of weeks. Massachusetts federal District Court Judge Douglas Woodlock issued an injunction to halt a DEFCON presentation on how to hack into that state's subway smart cards, called the Fare Media System. Opshal disagreed and asserted that the temporary restraining order is "violating their First Amendment rights." I don't know about that. Last time I checked, the First Amendment protection afforded by the Bill of Rights to the Constitution doesn't protect speech instructing others how to commit a crime.
Noncompetition Agreements Struck Down By California Supreme Court
The California Supreme Court yesterday settled a dispute between federal courts in California and our state courts on noncompetition agreements. In Edwards v. Arthur Anderson. The Supremes ruled first the noncompetition agreements are against public policy and therefore illegal. Second they decided releases in employment agreements can release "any and all" claims without improperly including claims that can't be released due to public policy prohibitions.
Federal courts previously upheld agreements that prevented an employee from going to work for a competitor, I think largely because most other states likewise uphold them. State courts, however, have been following the rule since 1872 when the California legislature wrote the law banning them.
The second portion of the ruling is of more interest to lawyers, perhaps. We're the ones who write the releases or advise clients to sign them. The issue revolves around whether the words "any and all" mean that the release includes claims that are illegal to release, such as noncompetition agreements. There's a tenet of the law that prefers to uphold agreements rather than void them.
So, to uphold the validity of the agreement, the court determined that the better course would be to rule the "any and all" didn't include claims that were illegal, so the court determined that the illegal claims weren't included in the release.
See why only lawyers would be interested in the second issue? But, employers are the ones interested in the noncompetition agreement. Luckily, employers can still rely on trade secret and nondisclosure agreements, which are not illegal.
Lawyer 2 Lawyer Internet Radio Spends the Summer Working Hard
How do summer associates programs at major law firms work? Hear the perspectives from current associates who were summers and a leader in the recruitment strategy at a large firm on this edition of Lawyer2Lawyer with me and my fellow co-host Bob Ambrogi, both attorneys and Law.com legal bloggers.
We welcome guests, Attorney Lydia Kelley, partner and co-chair of the recruiting committee at McDermott, Will & Emery in Chicago along with two young Associates now working at big firms, Claudine Coumbres at White & Case, LLP in New York and Michel Ayer at Quarles & Brady, LLP in Phoenix. Listen to their first hand experiences and opinions.
Copyright Issues Face Rapidly Changing Technology – Remote DVR Copiers OK For Now
Don't Get Excited; The Bigger Battle Still Looms
We know the DVR (Digital Video Recorder) that's attached to your TV doesn't infringe the copyrights held by movie companies and other Hollywood companies. Personal DVRs, like Tivo's unit, constitute fair use by individuals. Until yesterday, however, we were still up in the air over R-DVRs or Remote Digital Video Recorder, such as the one offered by Cablevision.
Well, we knew the lower court issued an injunction against it, but it was up on appeal and just decided yesterday, The case of The Cartoon Network v. CSC Holdings Inc. answers the question whether a remote DVR directly infringes so-called Hollywood copyrights. The Second Circuit overturned the lower court decision holding that the remote DVR service infringed the Cartoon Network's copyrights.
Cablevision's system works differently than Tivo. The latter is attached to your TV and the copy stays in your house. The copy of the program you recorded on Cablevision's system, however, is stored on a hard drive in Cablevision's office, not your home. TCN claimed that fact made it different than the Tivo box, but the court of appeal disagreed.
The Second Circuit overturned the District Court opinion reasoning that it was the consumer that pushed the button to record the program, not Cablevision, so if anyone was infringing, it was the consumer. The consumer isn't infringing if the recording is solely for private use.
What we don't know, however, is more interesting and perhaps more relevant to Cablevision, who right now is celebrating. Perhaps not for long, though.
The Cartoon Network's Complaint inexplicably does not contain a cause of action for contributory copyright infringement, a legal theory specifically excluded by the Second Circuit from its ruling: contributory copyright infringement. Sure, Cablevision isn't the one pushing the button to infringe on the copyright, but it is contributing the means to accomplish the copyright infringement.
Hint here: when the Court identifies a particular legal theory by name and says it's not ruling on that point, it's saying one of several things, but typically it goes something like this, "Hey guys over there at the Cartoon Network, get with the program. If you had just plead your case right, then we would have found for you." After all, with Fonovisa v. Cherry Auction, which was set up, briefed and argued by my partner, Craig Lindberg, ruling on the issue of contributory copyright infringement, the Courts have already given copyright attorneys a road map.
Let me explain. In the nationwide precedent-setting case of Fonovisa v. Cherry Auction, 76 F.3d 259 (9th Cir. 1996), the Ninth Circuit found swap meet owners liable for vicarious and contributory copyright and trademark infringement when counterfeit merchandise such as must casette tapes was sold by independent vendors at swap meets. The appellate court determined the swap meet owners sufficiently controlled their venues enough to know whether copyright and trademark violations were occurring, and they had an indirect financial stake in sales of the illegally infringing products.
The Court recognized this copyright and trademark infringement case was the first to reach the appellate level, and it ultimately became the precedent that was used to shut down the Napster file-sharing service. Fonovisa owned copyrights and trademarks for Latin music recordings as well as the Fonovisa record label. Fonovisa sued Cherry Auction in 1993, but initially lost at the federal district court level. On appeal, the Ninth Circuit reversed this lower court ruling and held the Cherry Auction swap meet liable for Fonovisa's damages.
Sure the Cartoon Network can appeal to the United States Supreme Court, but the question of direct copyright infringement is not the interesting one to pursue, and MIPTC predicts SCOTUS won't take TCN's petition for certiorari. Presumably, TCN will go back to the drawing board and discover the theory they missed the first time around - contributory copyright infringement.