May It Please The Court
Quote of the Day - There is no measure to the loss of a child.
Allegedly Dangerous Levels Of Carbon Monoxide From Powerboats Prompts Arizona Lawsuit
You've likely seen the email photos of the party on Lake Havasu, but have you seen this Complaint? Los Angeles residents Louis Patin and Erica Honore, the parents of 10-year old Austin Tyler Patin, sued the City of Lake Havasu for the carbon monoxide poisoning of their son. According to the Complaint, Alan was wading in Bridgewater Channel when he passed out from carbon monoxide poisoning and drowned last month.
The Complaint accuses Lake Havasu City of refusing to take steps to prevent deadly carbon monoxide levels from idling power boats moored at the channel. Despite large tax revenues from marketing a "party-like atmosphere" at the channel, particularly through the sale of alcohol, the City has refused to address the alleged problem, the suit claims. The parents also allege City officials knew about the carbon monoxide hazard from several documented poisonings.
One tourist died over the 2002 Labor Day weekend, the couple claims. Despite this alleged knowledge, the parents argue fears of losing tourist revenue overrode concerns for public safety. The suit states that boats without catalytic converters emit 188 times more carbon monoxide than cars, and leave a layer of undetectable gas hovering over the water that can cause dizziness, headaches and unconsciousness, leading to death.
The suit is pending in Arizona, and while MIPTC isn't licensed there, it's pending in federal court and based on common law negligence claims. It's a novel theory, claiming that the City has a duty to prevent emissions of carbon monoxide in a water channel. There are safe levels set by the USEPA, but they're mostly for indoors. Safe CO levels outside are limited to 9 ppm, according to the USEPA, but that's not a point mentioned in the Complaint. Even the conventional wisdom on the USEPA website points to generators as the greatest culprit for outside exposure to dangerous levels of carbon monoxide: generators, not boats - despite the fact that the warning comes from the US Coast Guard.
The CDC, however, issued its first warning on boat carbon monoxide emissions in 2000, but again it centered on boat generators, not boat engines.
Even so, the National Institute of Science and Health says it's a probelm. Until boats either get catalytic converters, laws get passed to limit CO emissions from boats, put a life vest on. Be careful out there.
US Government Loses Right To Collect Nearly $175 Million In Back Taxes Due To Typo
Will the US attorney who wrote this plea bargain agreement get fired? Will Congress investigate?
According to CNN, "The U.S. Justice Department erred last year and cited the wrong law in a binding plea agreement with telecommunication entrepreneur Walter Anderson, the largest known tax evader in U.S. history. That mistake made it impossible for the government to recover between $100 million and $175 million, U.S. District Judge Paul L. Friedman ruled." The prosecutors asked the Judge to reconsider the contractually-binding plea agreement because of a typo in a citation to a statute.
That's a lot of taxes.
Baseball Stats May Land In The Hands Of Fans, Not The Major League
Since early last year, trouble has been brewing in the world of fantasy baseball, and it's as real as it gets. The question of who owns baseball statistics is a sticky wicket for Major League Baseball. The club owners have sued those who use "their" statistics in order to pay rotisserie league baseball. Like the other trademarks and copyrights owned by MLB, they claim they own the stats too to the exclusion of the fantasy baseball players and providers.
MIPTC has covered the issue from the beginning and as developments occurred, and although I don't "own" a fantasy team, many lawyers and other friends do. They're quite upset over the prospects of losing their hobby. We may soon have an answer to the question. Arguments were heard in the appeals court today, and it's not looking good for MLB.
Looks like MLB wasn't throwing heat to the Court of Appeal. In fact, the heat was coming from the Court itself: "This is about names, you say, this is about statistics, they say," said Chief Judge James Loken. "I understand the practicality of the war because the statistics are in the public domain. And it seems to me it's clearly a use of public information to figure out that if you're going to have an ongoing fantasy sports league over the life of a real professional sports league -- clearly a collateral market -- you have to have an opening set of statistics and evolving statistics that will allow for competition and trades and so forth. And so where do you get those statistics? Well, you can't take the 1923 Philadelphia Athletics because that doesn't evolve over a season. So you take these statistics that are in the public domain. And as I translate your argument into this case, 'well, we won't argue with that but don't you dare put a name next to those statistics.' Well, of course, that's ridiculous."
MITPC calls this case a pop fly. It looks like an easy catch for an out to retire the side and put an end to this game.
Anti-bootlegging Statute Stands The Test: Copyright Violations Can Be Criminal
Despite a pitch from law professors and librarians decrying limitations on the distribution of live performance recordings, the Second Circuit reversed the trial court and ruled that Congress validly enacted a law outside the scope of the Copyright Clause of the U.S. Constitution, making that distribution a crime. Likening the law to criminal trespass, the Court said the power of the Commerce Clause gives Congress the authority to grant protections to artists unlimited by time. The Copyright Clause limits that protection to the life of the author, plus seventy years.
The Defendant in the criminal case, Jean Martignon, had been charged with selling illegally recorded live performances at his store, Midnight Records in Chelsea, New York. Professors and librarians joined his arguments that because Congress could not grant time-unlimited protection to artists under the Copyright Clause, they should not be allowed to do so under the Constitution's Commerce Clause.
The government on the other hand claimed the new criminal statute, 18 U.S.C. sections 2319A(a)(1) and (3), an anti-bootlegging provisions enacted in 1994 following the Uruguay international trade talks created no such conflict. They reasoned that the Commerce Clause was much broader than the Copyright Clause and did not preclude criminalizing the distribution of live performances. The government was joined by the Association of American Publishers, Warner Music Inc. and National Academy of Recording Arts & Sciences.
It's a close call, one that likely the Supreme Court will get the chance to consider. You likely haven't heard the last of this case yet.
Big Or Small, California Has Room For All; Just Not in My Backyard
The City of Hanford, California struck a blow for businesses big and small, even though the City Council acted to ring in Big Box stores such as Wal-Mart and Ikea. As MIPTC reported before, the City passed an ordinance to prohibit small stores from certain areas of its boundaries through a unique ordinance: no store smaller than 2,500 square feet can sell furniture in a certain zone.
The area designation was challenged by owners of small furniture store, but the California Supreme Court approved of cities either restricting or allowing certain sized stores depending on its goals. In other words, cites and counties can now act to attract or repel certain types of stores, big or small, as long as they can articulate a reason for doing so.
With the niche areas of specialization, you can now expect cities to jump on this bandwagon. Just imagine the possibilities for these cities: Intercourse and Deviation in Pennsylvania, right next to Paradise, Whisky Basin and Rough and Ready, California.
Truth In Music Advertising Seeks To Ban Fake Bands
Sha-Na-Na, Shoop Dooby Do
We have legislation to prevent violations of copyrights, trademarks and patents, and we may soon have legislation to ban "impostor" music bands. That's right, while your memory of what the Drifters, Platters & the Coasters looked like, you likely remember what they sound like, and there's apparently plenty of performers who will imitate these and other bands, but tell you that they were once part of the group, even though they weren't.
There's about twelve states with such legislation already on the books, so California's a bit behind the curve. Nonetheless, Assembly Bill 702, the "Truth in Music Advertising Act" appears headed for an easy victory in the Senate, having already passed the Assembly with flying colors. Governator Schwarzenegger has indicated he would sign the legislation if passed. The Act would impose statutory penalties on violators.
But don't fret: tribute bands with at least one original member of the band who has the legal right to use the band's name would be exempted. I've always wanted to hear The Supremes again.
Hollywood, Law And The Media Collide In Spector Trial
The Associated Press claims the trial of former music mogul Phil Spector shows "the ugly side of Hollywood." Sure the products of Hollywood shine, and there's plenty of glitz and glamour about, but there can be an entirely different undercurrent, as with most things in life.
It's how you look at it and how you treat it that changes the way it behaves. Look inside and you'll see. That's the part the AP missed reporting about. But Daryn Kagan regularly gets it right, and when the ugly appears in the regular media, there's another side to see.
Can We Fix Everything? Should We?
In the words of the Eleventh Circuit in Florida, the generic answer to those questions is "No." The Sierra Club sued the USEPA for delisting seven bodies of water as impaired under the Clean Water Act.
Let's be perfectly clear here: the seven bodies of water are contaminated above several of the total maximum daily loads (TMDL) pollutant levels of the Clean Water Act, it's just that the contamination is caused by nature, not man. The opinion addresses other issues, but this one seemed to rise above the others.
June 16, 2007 Update: Despite this ruling, however, Florida is in dutch for violating the Clean Water Act.