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 - Kids may think this is a prank, but we are taking this very seriously. This is a serious violation of the student code of conduct.
High School Football Stadium Card Stunt Prank Successfully Imitates College Efforts'WE SUCK' Display By Opposing Team's Fans Results In Detention, FameHigh school football season is underway in full force this year, which always reminds me of the "glory days" I spent playing football in my youth at small-town Schuylkill Haven Area High School, home of the Hurricanes, mind you. In my senior year of 1975, I had the opportunity to tour Lehigh University as a potential recruit. The University football coaches took us on the obligatory tour of the football field, which to their dismay when we reached the top of the stands and looked down, revealed a different-colored grass that clearly spelled out "Lehigh Sucks" from goal line to goal line, in huge, block letters. My father, a graduate of Lehigh's rival, Bucknell University, had the inside story. Bucknell students staged a late-night incursion onto Lehigh's field in mid-August, staked out the large block letters, complete with string to outline the letters, then proceeded to apply a strong fertilizer within the outlined block letters. Once all the fertilizer had been applied, they cleaned up the stakes, string and now-empty fertilizer bags, and left the scene of the crime without any evidence remaining. The weeks ticked by to the near end-of-the-season game with Bucknell, and sure enough right on cue, the fertilizer had done its trick and the big letters greeted the Leheigh fans, insulting the home team. The planning and execution made the prank just that much sweeter. Things have changed, however, at least from the presentation standpoint. The level of planning and execution remain the same. In the town of Hilliard, Ohio, a small suburb outside Columbus, two crosstown rival high schools, Darby and Davidson, duke it out each year for football bragging rights. The pre-game festivities include the obligatory pranks back and forth, including the message "You Suck" scrawled on a car window in the Davidson High School parking lot. That message apparently got high school senior Kyle Garchar thinking and scheming. He plotted revenge, and sweet revenge it was because he captured it on video and posted the return insult on You Tube. Kyle and two of his fellow seniors, Danielle Jewell and Jen Trimmer, at Davidson High School mapped out the stadium stands and created a schematic of black and white blocks to spell out letters, just like the pranksters from Bucknell. In fact, Kyle likely got the inspiration from a similar stadium prank pulled by Yale University students at a Yale-Harvard University football game in 2004 by the now infamous "Harvard Pep Squad," which was actually about 20 Yale students who are now enshrined in the Yale Hall of Fame. This type of prank first got started in the early 1960s, with the Great Rose Bowl Hoax in a game between the Washington Huskies and the Minnesota Golden Gophers in a card stunt that's been labeled as one of the "[f]ew college pranks can be said to be more grandly conceived, carefully planned, flawlessly executed, and publicly dramatic," according to Neil Steinberg, the author of If At All Possible Involve a Cow: The Book of College Pranks. In that stunt, fourteen CalTech students broke into the hotel room of the Huskies' cheerleaders and substituted 2,232 instruction sheets for the card stunts preformed in the stands, which resulted in misspellings of the Huskies' name and infamously displayed "CalTech," previously a largely ignored school near the Rose Bowl, which TV broadcast of the game succeeded in gaining the desired notereity for the school. In Kyle's case, he and his two friends passed out the black and white colored pages in the stands, which contained a note stapled to the back with the Darby High School panther, encouraging participation by everyone in the stands to spell out "Go Darby" at the beginning of the third quarter. At the prescribed time, everyone flashed the monochromatic pages and held them high above their heads. You can see the results here on this You Tube video, and get the full story from the follow-up TV news cast. A classic prank indeed. For his trouble, Kyle and his two friends were suspended for three days worth of detention and banned from extracurricular activities for the remainder of the semester. In their fellow Davidson High School friends' eyes, however, they are heroes, even though Darby won the August 24 season opener, 21-10. Should Illegal Aliens Pay Lower In-state Tuition While Out-of-state Citizens Can't?Kansas has a law that allows illegal aliens who live in Kansas to pay in-state tuition rates at its public colleges, while out-of-state U.S. citizens must pay higher, out-of-state tuition rates. The Tenth Circuit avoided addressing the merits of this law, but denied a challenge to the law by several out-of-state students based on the lack of any effect on them if the law was successfully overturned based on standing. In other words, the Court told the out-of-state students, "You're not the right ones to challenge this law." Call me silly, but if the illegal aliens are not Kansas residents and the out-of-state U.S. citizens are not Kansas residents, but are treated differently than the illegal aliens, then it seems there's an equal protection violation. Simple as that. People in the same class but treated differently. The harm is readily apparent, too. The out-of-state citizens pay more while the in-state aliens pay less. But then again, I'm not admitted in Kansas. The Tenth Circuit doesn't place the aliens and out-of-state residents in the same class, however, and views them quite differently, according to the opinion: "None of these [student] Plaintiffs would be eligible to pay resident tuition ... even if the allegedly discriminatory test ... favoring illegal aliens were stricken, because none attended Kansas high schools for at least three years and either graduated from a Kansas high school or received a Kansas GED certificate." The illegal aliens met those criteria, and were thus eligible for in-state tuition, according to the Circuit Court. The real question, it seems is more fundamental, and one that's even harder to answer. Should we provide different and better benefits to illegal aliens than to citizens based on where you live? Homeland Security Puts CalTech JPL Scientists Under A MicroscopeRebellion By LawsuitLong-time CalTech scientists at the Jet Propulsion Laboratory are not happy. They claim NASA and Homeland Security are threatening their jobs and invading their privacy because of allegedly unconstitutional "background checks" into their sexual orientation, sexual histories, associations and other "dangerously vague" criteria. The alleged offenses are "putatively based upon Homeland Security Presidential Directive 12." According to this Complaint, NASA demands "that JPL employees - including senior scientists and engineers, many of whom have been employed there for decades, and none of whom work on classified or national security materials or issues - submit to 1) an open-ended background investigation prying into their protected associational activities as well as myriad private and irrelevant personal information, and 2) a determination of their suitability for employment that includes such wrong-headed and/or dangerously vague criteria as sexual orientation, sexual history, medical and emotional history, financial history, ‘attitude,' and ‘personality conflict.'" Wow. "Geek" has a whole new meaning now. Farmers Life Insurance Policy Escapes Court Scrutiny, But Not Damning AdmissionWhen you think of the term "services," do you think that description includes life insurance? Before you ponder that question too long, the Consumer Legal Remedies Act, which is relevant to our inquiry today, defines "services" as follows: "work, labor, and services for other than a commercial or business use, including services furnished in connection with the sale or repair of goods." California Civil Code, § 1761(b). Sure, some businesses purchase life insurance, but in this situation, Pauline Fairbanks individually bought a universal life insurance policy from Farmers New World Life Insurance Company. Farmers sells what it calls interest-sensitive universal life insurance policies. According to Farmers, the Flexible Premium Universal Life policies were supposed to be "permanent." Farmers told Pauline that she could keep the policy in full force indefinitely by paying a stated premium amount. According to the Court, "In reality, this premium amount was insufficient to keep the policy in force to maturity." Oops. Pauline filed a class action, and alleged Farmers' policies were misrepresented and that Farmers engaged in deceptive and unfair practices in the design and marketing of the policies. She also alleged these policies were systematically underfunded so that they would lapse before maturity, and that Farmers fraudulently failed to warn policyholders of this possibility. She sued under the Consumer Legal Remedies Act, assuming life insurance was a service. Farmers got the case dismissed by the trial court, and Pauline appealed. Simple issue, but the appellate court upheld Farmers' dismissal of Pauline's case. Here's how they looked at it: "Insurance, in contrast, is defined by the Insurance Code as 'a contract, whereby one undertakes to indemnify another against loss, damage, or liability arising from a contingent or unknown event.' ... An insurance contract is not something akin to a haircut, a plumbing repair, or a two-year warranty on a microwave oven - it is simply an agreement to pay if and when an identifiable event occurs." How would you rule? MIPTC looks at life insurance the same way it does as a contract to purchase a microwave. When I turn it on, it better work as promised. Blawgworld 2007 Up, Running And Available For DownloadIf you're looking for everything blawgging, then you might want to check out Blawgworld 2007. It's a compilation of some 77 blogs and their posts, all in one, handy-dandy downloadable book.I STRENUOUSLY Object, Your Honor! - Oh, Make That HEAVILY ObjectTrial attorneys know it makes little difference to a judge whether you object in court or STRENUOUSLY object. In fact, I once saw a judge respond to the STRENUOSLY objecting lawyer that he was STRENUOUSLY overruled. You get the point. Apparently, the Ninth Circuit doesn't see it that way. The Court ruled that where the amount of drugs in issue in a case can be HEAVILY disputed, it's improper to prevent the defendant from having a forensic expert testify about the quantity in issue. The outcome will affect the length of the defendant's sentence. Now I know. Instead of STRENUOUSLY objecting, I'll have to HEAVILY object next time. The Seven-point Personal Information Technology Property ManifestoWe've set up an entire statutory and regulatory scheme for various types of intellectual property such as patents, trademarks and copyrights. You can protect your inventions, your designs and slogans and even your ideas. Perhaps within these three levels of protection you can protect your personal information technology property, but unless you register it, no go. There's no such thing as a common law copyright - it was eliminated back in 1834, just in case you were wondering. What do I mean by "Personal Information Technology Property?" Think about scope of the electronic things you create: personal websites, Facebook, My Space, videos on You Tube, Flickr photographs, text messaging, avatars on Second Life, Linden dollars, characters on World of Warcraft and a myriad of other online games, electronic money and other video game possessions, e-mail, blog entries, commentary, and a host of other new technological property that hasn't even been invented yet. Sure, you can register each of these things with either the US Patent & Trademark Office or the US Copyright Office, but have you? I suspect not. Once you post videos, films, songs, audio, photographs and words online without registration, you lose just about any type of protection you could have secured for these items. About the only type of online protection exists for these things is the voluntary Creative Commons licenses created by Stanford Professor Lawrence Lessig, but in order to enforce those licenses, you still have to put notice of them online, register your copyright with the US Copyright Office and go to court. But the Creative Commons licenses apply to what most of us would consider "works" - videos, photos, words, audio and other recognizably protected creations. Even Creative Commons, however, hasn't stretched into the world of Technology Property of avatars, electronic items such as e-money, video game possessions, text messaging and email. Even so, do you want to protect these things? Are they really that valuable? If you have any doubt, then just look at the thousands of hours people devote to amassing possessions in online video games, creating avatars and sending emails, just to name a few "valuables." It's about time we started thinking about these "possessions" and "creations" and developed a way to protect them. After all, what happens to them when you die? Can you transfer them to someone else? Can you sell them? People have and people are, all without guidance. It's just a matter of time before someone gets upset and sues. Oh, you say that's already happened? Of course it has. As just one example in the extreme, there's the lawsuit over the guy who allegedly stole the "sex code" in Second Life, created a strikingly similar version and now underselling its original creator. Even Creative Commons recommends you don't apply that license to code - the nonprofit recommends instead that you register it directly with the US Copyright Office. All of these questions create the need for accountants, lawyers and legislators to figure out how to handle this new Personal Information Technology Property, Web 2.0 and the yet-to-be-created technology just around the corner. So here's MIPTC's proposal, open to improvement and suggestions: 1. PITP includes all forms of personal information technology created by an individual on a computer, mobile telephone, camera or other technological device, including, but not limited to words, photographs, video, audio, text, characters (avatars), electronic possessions (money or similar representations or valuables obtained in online games), e-mail, text messages or combinations of the above in formats such as websites. PITP includes similar personal information technology not yet invented or created. 2. PITP is the property of the creator, and does not transfer ownership by virtue of its online presence. If you are the recipient of Technology Property sent to you by its creator, then you have the rights to view and retransmit it. If you are the viewer of Technology Property, then you have a license to view it. In both cases, your rights may be restricted by its creator, but in any event, you may not profit from the creator's PITP without permission or further license from the creator. 3. PITP may be patented, trademarked or copyrighted, but registration is not required to constitute PITP. 4. PITP constitutes a personal property asset, and as such may be insured, licensed, restricted, sold, transferred and otherwise willed to others or disposed of in the same manner as other personal property under state law. 5. PITP does not lose its characterization as personal property through its creator's failure to use it after creation. 6. PITP remains the personal property of its creator despite the creator's or others posting it online in any format. The creator or recipients may agree to give up the creator's ownership rights via notice in an End User License Agreement or other similar online notice. A posting by a Viewer does not operate to extinguish a creator's ownership. 7. The loss of PITP may be compensated by: (a) restoring the property to its creator; (b) and removing it from its unauthorized online location; (c) attributing the PITP to the creator on the online location; or, (d) recompense of the creator's actual loss. No future losses or prospective loss of profits may be recovered. [Author's note: to obtain future losses and expected profits, register the property with the USPTO or USCO]. So there they are. Please add your own, suggest changes and comment away. The concept could use improvement. MIPTC's Restaurant Review: San Francisco's DuccaMIPTC took a trip to San Francisco this weekend to present a seminar on "Ethics Issues In Environmental Law" at the CLE International California Climate Change Law Conference. On the way to our hotel on Third Street in the late evening, we walked by an opening in the giant buildings along the sidewalk that led into a grassy, park-like courtyard with art sculptures, soft chairs, clinking glasses, heaters and an outside movie. And a view. What a view. The backdrop to this oasis in The City is the building sculpture otherwise known as the Marriott Hotel. At night, with those lights in the sky, it is a simply stunning sight. Flanking the entrance near the Yerba Buena district are banner-sized drawings of the Doge of Venice and his wife hearkening from the times of Catherine Medici. It's your first clue of the spectacular nature of this Venetian-Italian restaurant that takes pride in its four versions of copper forks, reminiscent of a time when the rest of Europe was still licking its fingers. As historians know, forks and glassware were first used on the Venetian table. Ducca's historical acknowledgement is just a subtle signal that this restaurant is special. And special it is. Once inside, it's obvious Ducca (pronounced "Duke-a") is much more than a restaurant. Its trendy bar and circular lounge is THE place to see and be seen. The lounge's centerpiece, a sparkling red, glass-blown chandelier sets the mood for fun and drinks, with plenty of spice thrown in. Once past the bar, the restaurant opens with floor-to-ceiling translucent, silk-screened partitions of the doge and his wife separating the lounge from the dining room. Warmly greeted by the hostess, we first sat in the back corner of the stunningly decorated restaurant. Then General Manager Joel Kelly made it a special evening for us. After a barnburner of a day, a delayed flight, late arrival and not much more than the wearied looks on our faces, he escorted us from our first table into Ducca's private dining room, set up a two-top and closed the glass doors, silencing the lively conversations at the nearby tables. Soft browns and tans, white linen tablecloths and impeccable service greeted us throughout the lovely evening. Oh yes, and the food, especially for us, since we eat out more than in. MMMmmm, the food. Heaven on plates is about the only way I can describe it. Everything, from the freshly warmed bread to the sumptuous dessert was simply delicious. Hats off to Ducca. This writer's recommendation? You haven't been to San Francisco if you haven't had drinks and dinner at Ducca. Go here for the time of your life: Ducca, 50 Third Street, San Francisco, CA 94103. Phone: 415.977.0271. And say hi to Joel for MIPTC.
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