Archive for the ‘Federal Courts’ Category

Your least favorite song is now less annoying, or, at least, less costly. 

Thursday, September 24th, 2015

Yesterday, Hon. George King of the U. S. District Court for the Central District of California issued his opinion in Rupa Marya, et al. v. Warner/Chappell Music, and held that those companies that have been collecting royalties on performances of “Happy Birthday to You” over the last 80 years or so (yes, there are some, and the most recent purported owner has been racking up about $2 million per year in licensing fees from commercial use) do not actually own the song.  In a 43-page opinion that, for the record, makes it something like 300 times the length of the song it is about, Judge King determined that the song’s original copyright, obtained by the Clayton F. Summy Company from the song’s alleged writers, Preston Ware Orem and Mrs. R. R. Forman covered only certain specific arrangements of the song and not its lyrics.

As in the case of many an old song, the melody came from elsewhere, and is attributed to sisters Patty and Mildred Hill, who wrote “Good Morning to All.”  Judge King noted that has long been in the public domain, though, again, the writer is somewhat in question.  Because Summy Company never did acquire the rights to the lyrics, its successor in interest—Warner/Chappell Music—never acquired them either.

There’s more to Judge King’s opinion than fits into a little post like this, but the upshot of it all is that, when your Uncle Bob starts getting drunk and rowdy and singing to you at your birthday soiree, you can no longer shut him up with the threat of calling the copyright police.  Wait, am I the only one who does that?


A Fish Tale

Thursday, November 6th, 2014

In the wake of the Enron collapse, the WorldCom fiasco, and the various other corporate scandals that occurred in the late 1990s, Congress enacted the Sarbanes-Oxley Act, which made it a crime to knowingly destroy or conceal “any record, document, or tangible object” with the intent to obstruct an investigation into potential wrongdoing. Seems straightforward enough, right? A statute aimed at preventing cover-ups of corporate fraud? Well, maybe not. It seems the statute is also being used to pursue all manner of fishy business.

The U.S. Supreme Court recently tackled argument in the case of Florida fisherman John Yates v. United States. In a bit of turnabout, it was Yates who got caught this time—by a fish-and-wildlife officer who found Yates had 72 undersized grouper on his boat. He issued Yates a civil citation and told him to bring the fish back to port. According to prosecutors, Yates played hard of herring and instead dumped the undersized fish, replacing them with others that met the size limit. A jury convicted Yates of a Sarbanes-Oxley violation—destroying evidence on porpoise—and he got 30 days in the tank, plus three years of supervision.

Now, Sarbanes-Oxley carries with it some pretty harsh penalties. It seems it was meant for the slippery eels and the real sharks, not small fry like Yates. That motivated Justice Antonin Scalia to carp about the wisdom of the prosecution. Justices Kennedy, Alito, and Breyer also seemed ready to school the U.S. Attorney. Nevertheless, Justice Department lawyer Roman Martinez pointed out that it was not the Court’s plaice to decide that obstruction-of-justice should be applied differently between minnows and whales. Justice Kagan also pointed out that Sarbanes-Oxley’s language does not necessarily contemplate corporate fraud as its sole target.

The Court will mullet over for now and decide whether Yates is on the hook or will be the one that got away. A decision is expected in the summer of 2015.

Tip o’ the hat to Mary Flood.


Who is allowed to watch the Watchmen?

Thursday, August 21st, 2014

Having employees can be a difficult thing and create all sorts of problems. A business wants to control how it is perceived by its customer base and by the public, and this has lead to a good number of recent accounts of job applicants being asked for their social media passwords as a condition of employment. It comes down to employers wanting to limit what is said about them and make sure it is all positive. As antithetical as that may seem to free speech, there’s nothing legally wrong with it. A private employer can make it a rule that you don’t badmouth them if you want to keep your job.

But the same doesn’t go for governmental agencies. It’s a little thing called the First Amendment. Where it says “Congress shall make no law . . .,” you might as well substitute “Government shall make no rule . . .” because both Congress and the U.S. Supreme Court long ago applied the First Amendment to local government entities through the mechanism of the Fourteenth Amendment and several civil rights statutes. This is the law of the land: governmental agencies don’t get to tell their employees what they can say about their employer, as long as they are talking about matters of public interest.

But someone please tell Harris County Sheriff Adrian Garcia because, apparently, he didn’t get the memo. According to a new lawsuit filed by Carl Pittman, a Harris County Sheriff’s deputy (and electoral rival to Garcia), the Sheriff’s office (HCSO) has a new social media policy that, among other things, prohibits any employee, through a use of social media, from causing “undue embarrassment” to the office or “damag[ing] the reputation” or—here’s the kicker—“erod[ing] the public’s confidence in the HCSO[.]” In other words, don’t say anything less than complimentary about us on Facebook, or you’re outta here because the public might not like us, if you do. Here’s Pittman’s federal court complaint, and here’s the HCSO policy.

Government employers have some authority over what their employees say about the agency. The U.S. Supreme Court, in a case called Garcetti v. Ceballos, held that government employees don’t speak as “citizens”—and, thus, lose First Amendment protection—when their speech falls within their usual job duties. In those cases, they are acting as employees, not citizens. That means that how you do your job is between you and your employer, even though your employer is the government. You need to toe the party line, just like any private employer would expect.

But the same thing doesn’t hold when you step outside of the employee’s area of responsibility. In a more recent case called Lane v. Franks, the U.S. Supreme Court held that, just because an employee learns facts in the course of his employment, that doesn’t mean those facts are part of his job duties. And Lane would seem to make the HCSO social media policy highly questionable. That policy is not just about the internal workings of the agency. It’s about the public perception, as expressed by the people in the best position to inform that perception, and the HCSO wants to make sure the dirty laundry doesn’t get hung out.

Nevertheless, don’t think that Garcia’s office is completely unhip to what all you kids are doing on that internet thing these days. The policy also notes that “HCSO endorses the use of social media for pre-employment background investigations, crime analysis, situational assessments, criminal intelligence development, criminal investigations, internal affairs, marketing, recruiting, and community engagement.” So, social media is fine, as long as you don’t criticize us. Otherwise, it’ll get you fired.



Politics, bias, and the law

Thursday, January 5th, 2012

There’s something a little weird about members of Congress accusing Supreme Court justices of being overly political.  Republican lawmakers and their supporters have demanded that Justice Elena Kagan recuse herself from any case involving “Obamacare” or the “Affordable Health Care Act.” (Really, what you call it depends on whether you’re for or against it.)  Similarly, Democratic members of Congress and their supporters have called for Justice Clarence Thomas to recuse himself, in light of his wife’s campaigning against the new law.  As tempting as it is to try to weed out any and all possibilities of bias from a judicial panel before allowing it to hear a case, it’s a futile task and a pointless one, too.  No one goes through life without forming opinions on a whole lot of subjects, whether or not they’re qualified to opine on those subjects.  The combined efforts of plaintiffs’ and defendants’ trial lawyers try to choose jury panels that are roughly balanced, but it’s a given that predilections still exist.  When those predilections serve our opponents’ purposes, we call them “biases.”  When they serve ours, we call them “life experience.”

So it was good to see Chief Justice John Roberts stand up for the integrity of the Court in his year-end report on the Court’s activities.  Roberts didn’t mention the healthcare debate—or any particular case, for that matter—but he dismissed the notion that Supreme Court justices are subject to laxer rules than other judges.  “I have complete confidence in the capability of my colleagues to determine when recusal is warranted,” wrote Roberts. “They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process. I know that they each give careful consideration to any recusal questions that arise in the course of their judicial duties.”

The truth is, Roberts may be flat wrong.  But it doesn’t matter.  The good of our judicial system (and our governmental system, as a whole) dictates that we maintain a few fictions, and Supreme Court impartiality is one of them.  The Constitutional scheme of life tenure for federal judges creates the best chance it can of an impartial judiciary.  On the federal level, we’ve done our best.  In Texas, where we have a long history of allegations of “justice for sale”—on both sides of the party aisle, whether the characterization is correct or not—we’re still working on it.  Roberts’s report recognizes that an ethical judiciary requires appointing ethical people.  All else is faith.


Physician, heal thyself

Monday, June 20th, 2011

“Nothing is more simple than greatness; indeed, to be simple is to be great.” – Emerson, Literary Ethics.

This is, admittedly, a bit late to the party, but a series of video-recorded interviews with the Justices of the U. S. Supreme Court has made its way around the interwebs recently, publicized in large part by the good folks over at NPR.  The message for legal writers is a simple one:  “Skip the Legalese, and keep it short.” It’s good advice for anyone who writes in any arena, but it applies especially to appellate lawyers.  Still, I have to confess that my first thought on reading the NPR article was:  “Do these people ever read their own writing?”

Don’t get me wrong.  The Supreme Court deals with the weightiest of weighty issues—Constitutional rights, including the rights of the accused; death penalty cases; federal statutory and regulatory schemes; and the sometimes highly complex interplay of federal and state law, all set against the background of the most politically charged city in the entire nation.  In short, it just can’t be an easy job, and difficult subject matter requires a certain gravitas.  But it’s also no secret that Supreme Court opinions are longer now than they ever have been before.  As the New York Times noted last November, the landmark decision of Brown v. Board of Education desegregated public schools in fewer than 4,000 words in 1954.  In contrast, Parents Involved in Community Schools v. Seattle School District, tipped the scales at 47,000 words, despite addressing only an aspect of the ground so economically covered by Brown. The same Times article also observed that the length of majority opinions from the high nine hit an all new high in the 2009-2010 term.

At least part of this might be explained by the fact that there is simply so much more law out there since the Warren Court decided Brown. But opinions aren’t just longer.  They’re also less readable and, according to some sources, provide scant guidance to lower courts, attorneys, and the public at large.  So it’s not merely a question of efficiency but a question of usefulness, as well.  If a court’s written opinion has one function, above all, it is to say what the law is so that others can be guided by it.  That goes double when it comes to the opinion of the highest court in the land.

So, Physician, heal thyself.  Advocates should avoid wasting courts’ limited time with overly long, formalistic briefs loaded with legalese, but judges should reward that effort with concise holdings that eschew complexity and favor clarity.  Small words can say as much as big ones.  Earl Warren needed fewer than 4,000 such words to change America forever.  And effectiveness is measured by weight, not by volume.


The new face of frivolous lawsuits?

Friday, May 27th, 2011

The view of judicial-system abuse usually pushed by politicians and lobbyists, including some of the shills in our own Texas legislature, is of the barely-hurt-but-greedy auto accident or medical liability plaintiff who expects to back his truck up to the side of his lawyer’s office and start shoveling his money into the bed.  It’s the welfare mother who wants to live large on the windfall from a lawsuit, rather than get a job or the grandmother who gets millions for spilled coffee.  Tort reformers have made these kinds of stories—whether true or hyperbolic—their bread and butter for years now, and they have led to substantial legal “reforms,” some needed, some not.

But in the internet age, the frivolous litigant has a new face.  Righthaven LLC is a Nevada limited liability company that exists for what appears to be the sole purpose of bringing lawsuits for copyright infringement.  Righthaven is what the Electronic Frontier Foundation calls a “copyright troll.”  Righthaven searches the media for instances of possible copyright infringement—usually unauthorized use of newspaper articles or photographs—and then contracts with the original publisher for an interest in that same article or photograph.  It then turns around and files a copyright infringement suit against the alleged unauthorized user and splits the proceeds with the original publisher.  Being a professional litigant seems to be Righthaven’s only line of business.  (Its sole web presence is  Presumably, this allows publishers to chase lawsuits and try to scratch up a little extra cash on the side without actually getting their hands dirty in the often messy world of litigation.

But Righthaven had a recent setback in a Nevada federal district courtroom.  There, in the case of Righthaven v. Center for Intercultural Organizing, Hon. James Mahan granted summary judgment to the defendant on the grounds that its use of an article from the Las Vegas Review-Journal—a piece of which was sold to Righthaven by Stephens Media LLC, the publisher—constituted “fair use” within the meaning of the federal copyright law.  The gist of the holding was that an assignee that holds a share of copyright purely for litigation purposes has a case that is much more susceptible to defeat by a fair use defense.  Unlike Stephens Media, Righthaven isn’t in the business of disseminating information, selling newspapers, or even licensing news articles and photographs to others.  (The license it purchased from Stephens Media didn’t allow it to do any of these things.)  It’s in the business of filing lawsuits against websites, bloggers, and anyone else against whom it can arguably assert claims.  So a use of the article for its original intended purpose—disseminating information—becomes a transformative use within the meaning of the law and a transformative use falls within the fair use doctrine.

Of course, the claims Righthaven pursues are presumably claims that the original copyright holder feels aren’t worth pursuing if it would actually mean expending any of its own time or resources.  Litigation costs time and money.  It results in an invasion of privacy and a public parading of facts that many would rather have remain private.  The perception that plaintiffs hire a lawyer and then just sit back and wait for the money to roll in seems to be part of what has spurred the tort reform movement.  And if an individual like the hackneyed greedy personal-injury plaintiff or a corporation like Stephens Media can avoid the awkward and time-consuming aspects, the uncertainties and worries, of a lawsuit, by simply contracting them away, it’s bad news for our legal system.  Litigation shouldn’t be painless, but making it painless for its corporate partners is precisely what Righthaven appears to set out to do, while lining its own pocket in the process.  One would hope that it’s not only our federal judiciary that is taking notice of this new breed of litigant.

Tip o’ the hat to Courthouse News Service.


Plaintiffs whiff; EA walks

Thursday, May 5th, 2011

An update on Keller v. Electronic Arts, Inc., the case of a former college football quarterback who sued the video game maker for appropriating his likeness in its “EA Sports NCAA Football 2007” game.  I reported earlier on the trial judge’s rejecting several affirmative defenses posed by Electronic Arts here.  On Monday, however, (in a related case now consolidated with Keller’s) she rejected the plaintiffs’ claims against EA on the grounds that all it really did was follow the terms of the license granted to it by the NCAA and the Collegiate Licensing Company—in its own words, “the nation’s leading collegiate trademark licensing and marketing company.” (In a wholly surprising turn of events, a spokesman for EA declared the company “pleased” with the judge’s ruling.)

But at the same time as she granted EA’s Motion to Dismiss, she denied similar motions by both the NCAA and CLC.  Since the focus of the litigation will now be, not on EA’s actual use of college athletes’ public images and likenesses, but on the grant of rights made by the NCAA and, presumably, assisted by the CLC, the plaintiffs may find themselves on firmer ground.  It’s entirely possible that the license granted by the NCAA is substantially broader than the actual use to which that license was put by EA.  Indeed, the plaintiff athletes argue that the license deprived them of their rights in perpetuity, not just for purposes of one year’s video game and possibly not just for purposes of video games, at all.

So, in short, the NCAA may well have some ‘splainin’ to do before all this is over.

Tip o’ the hat to


A life lesson from the bench

Wednesday, May 4th, 2011

This Order on a Motion to Continue has made the round of the legal blogs over the last few weeks, and there really isn’t too much more to say about it.  Nevertheless, recent events in my own practice brought it to mind.

As law students, future lawyers are taught that the duty of zealous advocacy is one of the central—if not the central—duties we owe our clients.  You put the client’s interests above your own.  You put the client’s interests ahead of virtually any other interest, save the integrity of the justice system, itself.  And you sure as hell put your client’s interests ahead of those damned vermin (read, opposing counsel) on the other side of the table, right?  Wrong.  (Well, sometimes.)

U. S. District Judge Eric Melgren of the District of Kansas sounded just the right note in this order, which is why I think it has been referenced so many times.  The plaintiffs in the case—Jayhawk Capital Management—opposed a motion for a trial continuance filed by the defendants.  The reason for seeking the continuance?  One of the defendant’s lawyers wanted to be at his wife’s side for the birth of their first child.

Now, a trial setting is a valuable commodity for a plaintiff, and it’s not something to be given up lightly.  Many times, a recalcitrant defendant will suddenly see reason and come to the settlement table when the alternative is to face a jury in short order.  This may be especially so in personal injury cases, where feelings are often raw and individuals have waited months or years for their day in court.  But this appears to be a commercial dispute between two business entities.  And as Judge Melgren pointed out in his order, judges and lawyers should avoid confusing what they do with who they are, or distorting the priorities of their day jobs with their life roles.  That means putting human concerns ahead of legal ones and basic compassion ahead of gamesmanship.  Or as one blog put it:  just play nice.

It’s a good lesson, and though it’s received plenty of publicity, it still bears repeating.


Reporters and the Twittersphere

Thursday, April 21st, 2011

Ever since the Tim Donaghy affair, NBA referees have had something of a chip on their collective shoulder.  The nature of officiating in basketball is inherently subjective and inherently difficult due to the speed at which the game is played and the often subtle difference between a game-changing play and a momentum-killing foul.  But Donaghy crossed the line from “subjective” to just plain “crooked.”  Following an investigation by the FBI into whether he bet on games he officiated and made calls specifically intended to influence the point spread, Donaghy pled guilty to two federal counts against him and was sentenced to 18 months in prison.

With Donaghy’s confession (and his subsequent efforts to turn a buck off the scandal) still fresh in the minds of the NBA and the public, the whole sordid mess appears to be a tender spot for referees, and for one in particular—Bill Spooner, who last month filed suit in Minnesota federal court claiming defamation against AP reporter Jon Krawczynski.  On January 24, 2011, Spooner set out to officiate a game between the Minnesota Timberwolves and the Houston Rockets, as reported by Spooner’s complaint.  During the first half, Spooner called a foul on a Minnesota player and was questioned about it by Timberwolves’ coach Kurt Rambis.  Spooner replied that he would review video of the play at halftime and discuss it with Rambis later.  Rambis walked away from the conversation while remarking, “Fine, but how do I get those points back?”

Krawczynski—a witness to the exchange—later posted on his Twitter account:  “Ref Bill Spooner told Rambis he’d ‘get it back’ after a bad call.  Then he made an even worse call on the Rockets.  That’s NBA officiating folks.”  According to Spooner’s lawsuit, the post implies that Spooner planned to make a false call in order to balance the scales.  Spooner calls the tweet defamatory and alleges that it brought the wrath of the NBA down upon him in the form of a disciplinary investigation and caused harm to his reputation.

With Twitter now a ubiquitous part of the sports and journalistic landscape, Spooner’s lawsuit has potentially broad implications.  As one blogger observed, credible sources and verification are required to publish an item in a newspaper, but there’s no edit function on Twitter.  As a real-time medium, Twitter publishes statements from the speaker’s mouth to God’s—and everyone else’s—ear.  So far, Spooner’s suit hasn’t noticeably chilled the Twittersphere, and it may do no more than cause a reporter or blogger to double-check a source before posting—which isn’t necessarily a bad thing.  But any time that a journalist’s free speech—even concerning something as inconsequential as a basketball game—gets attacked, it’s cause for some serious thought.  As another blogger observes, is a tweet an extension of a reporter’s written or recorded report, or is it simply a record of random observations?  Is there a difference?  What about non-journalists with Twitter accounts (and there are many of us)?  Are we all held to the standard of journalists?  While credible sources and verification are required for newspaper publication, that seems like more a matter of journalistic ethics than anything else.  Verification makes for good legal protection, but is ironclad legality the standard we want for public discourse (albeit giving due deference that statements made should probably be intended to be factual)?

Tip o’ the hat to Courthouse News Service and OnPoint News.


The circus is in town…

Monday, March 21st, 2011

As a rule, I avoid commenting on any sort of criminal law matter.  I don’t practice criminal law at either the trial or appellate level, and I’m not deeply familiar with the big issues in criminal cases, two semesters of criminal law and criminal procedure notwithstanding.  The truth is that the criminal sphere and the civil are usually two separate worlds, and only a handful of lawyers move comfortably between them.  Those who devote themselves to criminal practice—particularly on the defense side—often have my sincere admiration for their dedication to their profession and craft and, more significantly, their core principles that mirror the ones truly fundamental to our justice system.

But high-minded thoughts aside, some days a criminal case strikes my interest because of the subject matter.  Today is one of those days because today is the day that Barry Bonds went on trial.

Bonds, of course, is the godson of Willie Mays and the current Major League Baseball homerun king, holding both the career (762) and single-season (73) records.  He stands accused of perjury—lying under oath to a federal grand jury about his alleged knowing use of steroids.  As much as I’ve never been a Bonds fan, it’s hard to know who is wearing the white hat in this one.

One of the prosecution’s major witnesses will be Jeff Novitzky, a former special agent for the Internal Revenue Service, who now works as an agent for the Food and Drug Administration investigating the use of steroids in professional sports.  It was Novitzky who brought to light the various sins of the Bay Area Laboratory Co-operative and who played a part in the downfalls of Marion Jones and Floyd Landis.  Novitzky seems to have been a major source of information for the Mitchell report concerning the use of performance-enhancing drugs in Major League Baseball.

The question here—as a fan of both baseball and our Constitution—is who do you root for in this contest?  Bonds is arrogant.  He’s a scion of, if not baseball royalty, at least a solid journeyman and multi-time All Star with a record that didn’t quite make the Hall of Fame.  As a player, he surpassed his father’s accomplishments by far.  His exploits captured baseball fans’ imaginations, even as his public persona repelled many.  But arrogance doesn’t get you jail time.  Pride may be a sin, but it’s not an offense.  Unfortunately for Bonds, lying to a grand jury is, and that’s what he’s accused of doing.

On the other side, there’s Novitzky.  Crusading for justice is one thing, but being a crusader is quite another.  In the bestselling Game of Shadows, journalists Mark Fainaru-Wada and Lance Williams detailed Novitzky’s digging through dumpsters and sifting garbage to find evidence of steroid distribution by Victor Conte, the driving force behind BALCO.  In the course of that investigation he discovered evidence of steroid use by Bonds and others.  One wonders what might have happened if HIPAA applied to dumpsters….

So those of us who care about both our national conscience and our national pastime are left with a bit of a dilemma.  Bonds is no hero, but does Novitzky get a pass for invading privacy rights, just because it turns out he was probably right?  Does a willingness to dig through garbage make you a role model more than an artificially souped-up ability to hit homeruns?  Is the pursuit of justice, without observing the spirit of the law, any nobler than the pursuit of the homerun record, without observing the spirit of the game?  Twelve umpires will decide.