Our capacity to be just is measured by our capacity to do justice to those most in need of it.

The only way to do justice is to provide opportunities for justice. 50 years ago, in Gideon v. Wainwright, the Supreme Court ruled that a criminal defendant has a constitutional right to representation by a lawyer and that, if he cannot afford one, the state must provide him with one. Now, with our states and local governments starving for money, this foundation of our justice system is sorely threatened. Two lawyers whose careers have been devoted to these issues, Virginia Sloan and (my good friend) Cait Clarke, write:

The report of the Constitution Project’s National Right to Counsel Committee, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel, is the most comprehensive examination of the indigent defense crisis in over 30 years. The Committee, whose members represent every relevant part of the criminal justice system, including prosecutors, judges, victim advocates, defenders, bar leaders, and scholars, unanimously concluded that this country’s indigent defense system is in crisis, that the government has for too long ignored its obligation to provide lawyers in these cases, and that it cannot be ignored anymore. The report outlines 22 urgently-needed recommendations for reform.

One of the most important recommendations is that indigent defense should be provided through an independent, non-partisan authority that appoints qualified, experienced lawyers who have adequate resources. Of equal significance is the recommendation that the federal government assist the states in ensuring that the Sixth Amendment is protected and that poor people have the kind of lawyers to which they are constitutionally entitled. The federal government provides badly-needed funding for law enforcement and prosecutors, but to continue doing so without also providing funding for public defense services simply exacerbates the already untenable situation.

Another recommendation is that the federal government should create a federal office of public defense services to distribute funds, collect data, promulgate standards, and develop and deliver training similar to the federally-supported training for state and local prosecutors. Additionally, the federal government should require all states to abide by national standards for public defense. Adoption of the American Bar Association’s Ten Principles would provide constitutionally adequate legal representation for criminal defendants unable to afford an attorney.

One innovative idea that will improve the quality of representation for indigent defendants is to create a national fellowship program to cultivate and train the next generation of indigent defense lawyers. This would dramatically increase the number and caliber of lawyers working to secure justice for clients and communities. Equal Justice Works, working in partnership with the Southern Public Defender Training Center (SPDTC), is proposing to do just that.

Jack Mackie, litigator-artist: artists aren’t entitled to stop uses of their work merely because they don’t like those uses.

A friend (who happens to be a relative too) points out to me that the artist whose lawsuit I wrote about yesterday — Jack Mackie, creator of the popular outdoor artwork in Seattle known as “The Dance Steps” — has previously sued over the alleged infringement of his copyright in that work. He was largely unsuccessful in the earlier lawsuit, Mackie v. Reiser, 296 F.3d 909 (9th Cir. 2002), cert. denied 537 U.S. 1189 (2003), but not for a lack of trying — he appealed his case to the U.S. Court of Appeals for the 9th Circuit and even sought to have that decision reviewed by the U.S. Supreme Court.

In Reiser, Mackie sued the Seattle Symphony Orchestra for using a photo of part of The Dance Steps without his permission in a Symphony promotional campaign. Even assuming the Symphony’s use of the image constituted an infringement, the court ruled that Mackie was not legally entitled to statutory damages for copyright infringement because he had not registered his copyright in The Dance Steps; nor was he entitled to damages from the Symphony’s “direct profits.” He was awarded $1,000, based on the trial court’s determination that that is the amount he would have been paid by the Symphony for a license to use the work, but he even appealed that award as inadequate because he did not like the way the Symphony used the image of his work.

The court focused on his claim for “indirect profits” — that is, the profits the Symphony earned from its promotional material that were attributable to the allegedly infringing use of an image of Mackie’s work. But Mackie was not able to produce evidence that any of the Symphony’s profits were attributable to their use of the image of The Dance Steps. In fact, “Mackie’s damages expert had testified that it was impossible to determine how much of the Pops revenue could be traced to the infringing artwork.” Although the expert subsequently testified that he had been wrong and that he believed 1.5% of the Symphony’s profits from the campaign could be traced to its use of the image of The Dance Steps, the court held that that belief was too much based on speculation. Interestingly, at trial, Mackie himself “conceded that his putative loss of future earnings was speculative at best [and] . . . that he had previously given permission for others to use ‘The Tango’ without payment of a royalty.”

Finally, the court ruled that there were no grounds to award Mackie more than $1,000 to represent the amount the Symphony would have had to pay him for a license to use an image of The Dance Steps despite Mackie’s “personal objections to the manipulation of his artwork.” It is important to understand that copyright does not give an artist the power to stop a use of his work merely because he doesn’t like the use. And, indeed, the court concluded: “Although it is not hard to be sympathetic to his concerns,  . . . Mackie’s subjective view, which really boils down to “hurt feelings” over the nature of the infringement, has no place in this calculus.”

There’s wealth and then there’s wealth.

One of the most common criticisms of a lot (not all!) of the so-called “economic” analysis that has dominated the political and legal minds of the last 30 years is its inability to account for value that cannot be reduced to monetary terms. The criticism, while duly noted, tends to be immediately forgotten. As a result, we’ve had an entire generation that’s felt compelled to justify its decisions on purely economic terms. The economic crisis may be affecting this tendency as much as its affecting other ways of viewing the world. Last year, some big law firms that were getting less work from their clients gave graduating law students to whom they’d given offers of permanent employment an offer that sounded to good to be true: go get another job — let it be low paying and “public interest” — and we’ll pay you a part of your salary in the expectation you’ll come work for us permanently next year. But now, according to Georgetown Law Grad Russ Ferguson, those firms are finding out, to their surprise, that the students who took advantage of the offer like their alternative jobs too much. Most importantly, they’re realizing that they’re wealthier in real terms in their lower paying jobs:

These new lawyers have found that their new jobs are more fulfilling and more interesting, and — more importantly — they’ve seen that they can live on a smaller salary. As one of my classmates put it, “Add up the hours I worked this week and add up the hours my friends at law firms worked. Divide our salaries by the amount of hours and you’ll see — I’m rich.”

(hat tip to the ABA Law Journal)

Trying Proposition 8 as teachable moment

Margaret Talbot notes that a trial can be a terrific method of educating the public on controversial issues. In particular, she focuses on Perry v. Schwarzenegger, the case in which the constitutionality of California’s Proposition 8, overturning the state’s gay marriage law, is being challenged. Talbot has been blogging about the trial throughout the 3 weeks it has been going on. Her latest post points out that trials, in subjecting witnesses to cross examination, permits scrutiny of controversial views that other forums don’t ever provide. As David Boies puts it “The crucible of cross examination forces the witness to confront the other side; they can’t fall back on bumper sticker slogans like ‘marriage is between a man and a woman.’ ”

Talbot compares the educational value of Perry to that of the trial in Kitzmiller v. Dover Area School District, the successful legal challenge against a public school district’s requirement that “intelligent design” be taught as an alternative to evolution as an explanation of the origin of life:

In many ways [the trial in Perry] reminded me of another culture-war trial that I covered, in 2005, one that presented a similar opportunity for intellectually engaging with the arguments and research that usually remain submerged beneath a politicized controversy. That trial was to decide whether intelligent design could be part of the curriculum in a Pennsylvania school district, and its expert testimony covered everything from the fossil record of obscure dinosaurs to Darwin’s own religious beliefs to the theoretical underpinnings of the separation of church and state.

It really is unfortunate the Supreme Court ruled that Perry could not be broadcast via the internet. I very much would like to have seen a witness explain exactly how it is that gay marriage undermines straight marriage. I’ve genuinely tried to understand the argument from some very intelligent people who think that gay marriage does indeed undermine straight marriage, but, I’ll confess, my mind has been unable to get itself around the argument.

Supreme Court decides, 5-4, that those public courts aren’t so public after all.

From the L.A. Times:

By a 5-4 vote, the U.S. Supreme Court kept in place Wednesday its order blocking video coverage of the trial of California’s Proposition 8, with a conservative majority ruling that defenders of the ban on same-sex marriage would likely face “irreparable harm” if the proceedings were broadcast to the public.

“It would be difficult — if not impossible — to reverse the harm of those broadcasts,” the court wrote in an unsigned opinion. The witnesses, including paid experts, could suffer “harassment,” and they “might be less likely to cooperate in any future proceedings.” The high court also faulted U.S. District Judge Vaughn Walker for changing the rules “at the eleventh hour” to “allow the broadcasting of this high-profile trial” that will decide whether gays and lesbians have a right to marry in California.

Though the opinion is unsigned, it clearly speaks for Chief Justice John G. Roberts Jr., and Justices Antonin Scalia, Clarence Thomas, Anthony M. Kennedy and Samuel A. Alito Jr. . . .

The majority cited newspaper accounts from the last year to bolster its contention that opponents of same-sex marriage have been “subject to harassment,” including “confrontational phone calls and e-mail messages” and even “death threats.” Under the court’s rules, the justices do not intervene in pending cases unless they are convinced that the appealing side has a strong legal claim as well as evidence of “an irreparable harm” if the court fails to act.

[Justice] Breyer [in the dissenting opinion joined in by Justices Stevens, Ginsburg, and Sotomayor] scoffed at the notion that the witnesses in this case would face harm, because they have gone on television in the past to advocate their views. “They are all experts or advocates who have either already appeared on television or Internet broadcasts, already toured the state advocating a ‘yes’ vote on Proposition 8,” he said.

Here’s legal innovation: YouTube Broadcast of the Proposition 8 Trial. But will it happen? Stay tuned.

There are few more important and timely issues concerning innovation and law than the impact of the internet on courts. Courts have always been considered public institutions anyone could walk into to see court proceedings or to look themselves at court files. But now making something “public” means making it available to anyone at his or her own computer, and the inherent resistance to change that resides in any well-established institution makes courts and those who don’t want their legal stands exposed to the brightest possible public lights reluctant to embrace this new notion of public access.

So, as CNN reports, controversy and legal wrangling has erupted over the decision by “the federal judge who is hearing appeals of California’s Proposition 8 this week ruled that the proceedings could be shown — albeit in delayed fashion — on YouTube.”  But opponents of same-sex marriage, outlawed by Proposition 8, appealed the judge’s order and yesterday the Supreme Court postponed the online broadcasts at least until tomorrow (when, it is hoped, the Supreme Court will rule on the issue).

Jon Davidson, legal director of the pro-gay rights Lambda Legal, argued that opponents of same-sex marriage want to keep the trial as much out of the public eye as they can because public debate on same-sex marriage actually increases support for it. In addition, he argued that the risks of true public access to the proceedings is way overblown:

“One of the things we find on the marriage issue, but really on all issues in response to gay rights, is that the more discussion there is — the more conversation, the more people learn — the more likely it is that gay people are going to do well,” Davidson said.

Davidson said posting the trial on YouTube wouldn’t increase the potential for witnesses to be harassed, saying that anyone can read news reports after the fact to find out who spoke and what they said.

Besides, any effort to block new-media coverage of the hearings is already too late, Davidson said. He said people in the courtroom for opening arguments Monday were posting live updates to Twitter throughout.

The records in the Bristol Palin/Levi Johnston custody battle should be sealed.

Court documents are public records. Do we really want internet access to all court records. Do you want anyone with an internet connection to have access to the files in your divorce case? Do you realize how much personal stuff you might have to disclose in a lawsuit? Do you realize how many lies can be aimed at you by opposing counsel and their client?

While all this stuff is of course available now, forcing someone to go down to the courthouse to ask for the files and look at them there certainly filters a considerable amount of junk from public disclosure.

In a certain way, the issues raised by these questions are relevant to the piece by Ruth Marcus in which she struggles with her own internal conflict over whether the court hearing the custody battle between Bristol Palin and Levi Johnston should seal the records, thereby keeping them from the eyes of journalists (and, indirectly, from the public at large:

As a journalist, I’m supposed to be in favor of maximum access to court documents. As a human being—and in particular as a mother—I have a hard time seeing why the custody fight between Bristol Palin and Levi Johnston ought to be splayed out on the public record for all to see. An Alaska judge has denied Palin’s request to keep the dispute under seal. How can this possibly be in the best interests of the child?

I happen to agree with Marcus’ view as a mother. As she also writes, the “question in the case is whether Bristol Palin’s request for sole legal and physical custody of her son—with Johnston given visitation rights—should be granted.” The evidence regarding that request, which no doubt will include allegations of outrageousness from both sides, turns on the best interests of the child. It’s certainly in the best interests of the child that there not be a full public record of these allegations. And I frankly see no public interest outweighing that interest.

But it makes sense that the Palin/Johnston case is fought out over a request by one party to seal the record — Bristol Palin knows reporters will be down at the courthouse ready to broadcast the allegations set forth in any document filed. What about you? Do you know who’s going to be trolling through the files in your case from his laptop off in some coffee shop a thousand miles away?

A cell phone really (not just abstractly) is different than an address book.

The Ohio Supreme Court ruled yesterday (pdf) that police officers must obtain a search warrant before searching the contents of a suspect’s cell phone unless the officers’ safety is at stake. The specific data at issue were the records of the telephone calls made to and from the suspect’s cell phone.  As the court made clear, “[o]nce the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone is neither lost nor erased. But because a person has a high expectation of privacy in a cell phone’s contents, police must then obtain a warrant before intruding into the phone’s contents.” Slip op., ¶23.

In reaching its decision, the court first distinguished cell phones from “closed containers,” “physical objects capable of holding other physical objects.” Such objects on or in the vicinity of a suspect are subject to search without a warrant. ” Indeed, the United States Supreme Court has stated that in this situation, ‘container’ means ‘any object capable of holding another object.’  One such example is a cigarette package containing drugs found in a person’s pocket.” Id., ¶19 (citations omitted). The dissenin the Ohio case concluded that the cell phone is a “closed container” because “a cell phone’s digital address book is akin to traditional address books carried on the person. Courts have upheld police officers’ search of an address book found on an arrestee’s person during a search incident to a lawful arrest.  The phone’s call list is similar, showing a list of telephone numbers that called to or were called from the phone.” Id., ¶34.

The dissent’s reasoning seems odd. The phone’s call list is not “similar” to an “address book.” The call list is electronically generated by making and receiving telephone calls, and thus is the same kind of electronically generated information regularly produced by, among other devices, your laptop. Thus, the majority of the court were convinced that because modern cell phones “have the capacity for storing immense amounts of private information” they are thus are more like laptop computers, in which arrestees have significant privacy interests — in contrast to address books or pagers found on their persons, in which defendants have lesser privacy interests. Id., ¶18. The court did not equate cell phones precisely to laptops (though no doubt iPhone users might take exception to the court’s failure to do so), but the similarity, in combination with the fact the police have the means necessary by warrant to obtain information from a cell phone, compelled the court’s conclusion:

Although cell phones cannot be equated with laptop computers, their ability to store large amounts of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain. Once the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone is neither lost nor erased. But because a person has a high expectation of privacy in a cell phone’s contents, police must then obtain a warrant before intruding into the phone’s contents. Id., ¶24.

The dissent, on the other hand, unable to distinguish a cell phone from an address book, accused the majority of “needlessly embark[ing] upon a review of cell phone capabilities in the abstract.” Id., ¶30.

Funny, I didn’t know that the review of differences between cell phones and address books in 2009 required “abstract” thinking.

Who owns the rights to ebooks – publishers who bought the rights to publish “in book form” or the original authors? I’ll bet on the authors.

Who owns the rights to electronic versions of books governed by contracts published back in the days when there was no such thing as an e-book?

Typically, the contracts an author signed with the publishers of those books gave the publisher the exclusive right to publish “in book form” or “in any and all editions.” According to the New York Times (hyperlinks added),

In 2001, Random House sued RosettaBooks, an e-book publisher, for copyright infringement when Rosetta signed contracts with authors . . . to release digital versions of previously published novels.

In its suit, Random House relied on wording in its contracts that granted it all rights to publish the works “in book form.”. . .

In 2001, a federal judge in Manhattan denied Random House’s request for a preliminary injunction against RosettaBooks, ruling that “in book form” did not automatically include e-books. An appellate court similarly denied Random House’s request.

On Friday, however, the Times reports (hyperlinks in original) that “Markus Dohle, chief executive of Random House, sent a letter (pdf) to dozens of literary agents, writing that the company’s older agreements gave it ‘the exclusive right to publish in electronic book publishing formats.’” According to Mr. Dohle’s letter:

The vast majority of our backlist contracts grant us the exclusive right to publish books in electronic formats, as well as more traditional physical formats. At the same time, we are aware there have been some misunderstandings conceming ebook rights in older backlist titles. Our older agreements often give the exclusive right to publish “in book form” or “in any and all editions”. Many of those contracts also include enhanced language that references other forms of copying or displaying the text that might be developed in the future or other relevant language that more specifically reflects the already expansive scope of rights. Such grants are usually not limited to any specitic format, and indeed the “f0rm” of a book has evolved over the years to include variations of hardcover, paperback and other written word fonnats, all of which have been understood to be included in the grant of book publishing rights. Indeed, ebook retailers market, merchandise and sell ebooks as an alternate book format, alongside the hardcover, trade paperback, and mass market versions of a given title. Whether physical or digital, the product is used and experienced in the same manner, serves the same function, and satisfies the same fundamental urge to discover stories, ideas and infomation through the process of reading.

Accordingly, Random House considers contracts that grant the exclusive right to publish “in book form” or.”in any and all editions” to include the exclusive right to publish in electronic book publishing formats. Our agreements also contain broad non-competition provisions. so that the author is precluded from granting publishing rights to third parties that would compromise the rights for which Random House has bargained. We believe the effective exercise of electronic rights is key to the future of publishing and that the combined marketing of print and digital formats increases overall sales and creates the largest possible pool of revenues for authors and publishers, Our efforts and investments in the digital realm perfectly complement Random House’s unmatched physical sales and distribution capabilities, which remain a centerpiece of our business and relationships.

But William Styron’s family disputes Random House’s assertions that it owns the rights to publish electronic versions of Mr. Styron’s books. One problem with Random House’s position is that, despite what Mr. Dohle writes, Random House’s contract with Mr. Styron did not grant to Random House rights that refer to “forms of copying or displaying the text that might be developed in the future,” and, in further contradiction to Mr. Dohle’s words, were quite explicit in being “limited to . . . specific format[s].” As the District Court decision in the case between Random House and Rosetta Stone makes clear, Styron’s contract granted Random House “an exclusive license to ‘print, publish and sell the work in book form,’ Styron also gave it the right to ]license publication of the work by book clubs,’ ‘license publication of a reprint edition,’ ‘license after book publication the publication of the work, in whole or in part, in anthologies, school books,’ and other shortened forms, ‘license without charge publication of the work in Braille, or photographing, recording, and microfilming the work for the physically handicapped,’ and ‘publish or permit others to publish or broadcast by radio or television … selections from the work, for publicity purposes ….’”

The court reasons that the “separate grant language . . . to convey the rights to publish book club editions, reprint editions, abridged forms, and editions in Braille . . . would not be necessary if the phrase ‘in book form’ encompassed all types of books. That [language] specifies exactly which rights were being granted by the author to the publisher.”

The court further opined that “a reasonable person ‘cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business,’  would conclude that the grant language does not include ebooks. ‘To print, publish and sell the work in book form” is understood in the publishing industry to be a ‘limited’ grant.’” (citations and footnote omitted)

Finally, the court pointed out that Random House itself had acknowledged that ebooks are a new medium (and thus, presumably, not within the contemplation of the parties when they entered into their agreements to allocate their respective rights):

In this case, the “new use” – electronic digital signals sent over the internet – is a separate medium from the original use – printed words on paper. Random House’s own expert concludes that the media are distinct because information stored digitally can be manipulated in ways that analog information cannot. Ebooks take advantage of the digital medium’s ability to manipulate data by allowing ebook users to electronically search the text for specific words and phrases, change the font size and style, type notes into the text and electronically organize them, highlight and bookmark, hyperlink to specific parts of the text, and, in the future, to other sites on related topics as well, and access a dictionary that pronounces words in the ebook aloud. The need for a software program to interact with the data in order to make it usable, as well as the need for a piece of hardware to enable the reader to view the text, also distinguishes analog formats from digital formats. See Greenberg v. National Geographic Soc’y, 244 F.3d 1267, 1273 n.12 (11th Cir. 2001) (Digital format is not analogous to reproducing the magazine in microfilm or microfiche because it “requires the interaction of a computer program in order to accomplish the useful reproduction involved with the new medium.”). (citation omitted; hyperlink added).

There’s no question the publishing houses are fighting for their very existence. It’s interesting, though, that copyright holders are fighting the publishing companies over those rights. So much of the focus in this area of late has been over Google’s right to copy books to make them searchable so that they could be found and, as a result, purchased or otherwise obtained from the rightful owners of the books themselves. But now it’s the publishers who are trying to stretch the rights they contractually negotiated for decades ago to realms no one imagined at the time.

It will be interesting to see where this goes next. As a contracts professor, my first impression is that Random House isn’t exactly in the strongest of positions.

Nesson continues to blame others for his lousy job of lawyering.

The  Harvard Law Record reported yesterday on Charlie Nesson’s address to : a room full of HLS students to explain his motivations and methods as the lawyer representing Joel Tenenbaum in Sony BMG Music v. Tenenbaum, the case that resulted in a $675,000 judgment against his client.

I have on more than one occasion expressed my harsh views regarding Nesson’s lawyering in the case (here and here). But the Harvard Law Record’s story only adds fuel to my fury at Nesson’s lawyering skills. According to the story, “When the case first came to his attention, Nesson knew that there was little chance of victory on the merits, with the only truly viable strategy at trial being the minimization of damages.” (emphasis added)

The RIAA cannot have been happy about the way it looks after winning a judgment of $675,000 from a kid, especially since, as Nesson with some degree of accuracy explains, “[w]hat Joel did in downloading and sharing songs was what just about every kid in his generation did and which I bet a great many of you did.” The RIAA was anxious to settle a similar case in which it won $1.92 million from Jammie Thomas-Rasset for illegally downloading 24 songs. As Mike Masnick wrote, the RIAA “seems to recognize that the insanity of the $1.92 million doesn’t do it any favors. Even the musicians whose music was part of the case are embarrassed by the amount. . . . the RIAA would love to settle the lawsuit for some lower amount so it can run around touting the ‘risks’of file sharing without having people laugh outloud when hearing that someone had to pay $1.92 million for potentially sharing 24 songs that could be bought for $1 each.”

And Tennenbaum quite plainly had the ability to minimize damages through settlement rather than by means of Nesson’s tactic of going to trial. In February, Ars Technica reported that the “RIAA’s initial offer to settle, made way back in 2003, was for $3,500. Joel offered $500, which was declined. After the case went to court in 2007, the judge ordered the parties to settle and work it out between themselves. Joel offered $5,000. The RIAA demanded $10,500.”

And yet Nesson, realizing that “there was little chance of victory on the merits” and that the only viable way of representing his client’s best interests was to minimize the amount of his liability, failed to settle a case that at most would have cost his client $10,500 (assuming, contrary to any notion of common negotiating sense, that the RIAA would not have moved off of its last offer).

The Harvard Law Record’s story goes on to state that “the evidence presented by the RIAA . . . made it look like Tenenbaum blamed others and lied,” thereby interfering “with his effort to appear credible and sympathetic.” The problem is that the evidence didn’t merely make it “look like” Tenenbaum lied. He admitted in trial that had lied in sworn statements he had made before trial that he had not used peer-to-peer file sharing networks to download and upload recordings.

I’ve said it again and again. I’m no fan of the RIAA. The recording industry’s business and legal responses to the technological revolution that has deprived them of their former monopoly on the means of mass producing and distributing recorded music have been, to my legal and business mind, idiotic. But Nesson was Tenenbaum’s lawyer. His professional judgment as a lawyer was that any legal defense to the RIAA’s claims had little chance of success and that the best lawyering job he could do for his Tenenbaum was to minimize the damages he would be liable for. Nesson clearly had the opportunity to do so. That he passed up that opportunity in a quixotic fight for a principle might be something a lot of people admire, but it’s terrible lawyering.

The inexorable trend toward free access to court documents

I mentioned last week that Google Scholar can now be used to find case law. It’s real progress.Court documents, after all, are public documents, so it sometimes seems a bit frustrating that the only reliable way to do legal research is through private systems. As Wired’s Threat Level explains, “West [Publishing], and its competitor, Lexis Nexis, buy court data in bulk, reformat it and add proprietary citation codes. They then license the database of public documents at high rates to libraries, law firms and government agencies. Even the U.S. Court system pays West’s high license fees to access public court documents that West purchased from it.”

To make matters worse, the court system’s database, PACER, doesn’t work well: “the search function is intricate and inflexible, and lacks a way for users to be notified when a case is updated. And in the age of Google, it is absurd to charge citizens to search for the name of a person in a lawsuit. Even looking at the docket sheet — a short form list of all actions in a given case — costs $.08 a page.”

The ability to copy and disseminate documents instantaneously, of course, is breaking this system down.  In addition to Google Scholar, a “Firefox plug-in called RECAP, created by Princeton students, uploads court documents to a public archive any time a user goes into th e system, while programmer Aaron Swartz took advantage of a pilot program offering free access to download 18 million court documents (that earned him an FBI investigation).”

I’ve got mixed feelings about court dockets in their entirety being freely available via the internet (as opposed to, say, the documents courts themselves produce). Dissemination of documents produced without thought to a worldwide audience can cause serious misunderstandings. But technology and economics seem to be inexorable forces — just ask the music industry: try as it might, it isn’t going to recreate a world in which it held a monopoly on the ability to produce and distribute recorded music. And it’s probably better after all that the public gets for free the court documents it produces.

Breathlessly waiting for Murdoch to be sued . . . or wither on the web?

The Kwika Entertainment Blog (reprinting a piece from the Huffington Post) breathlessly announces that “if Microsoft and [Rupert Murdoch's] News Corp. go forward with a deal whereby News Corp. demands that Google stop indexing its websites, don’t be surprised if it leads to one of the most important copyright lawsuits in history.”

Don’t bet on it.

Google’s display of snippets from News Corp’s web pages for search engine purposes is almost certainly fair use. Can you imagine a Google snippet ever serving as a substitute for the original? If not, then the snippet is fair use. And copying the entire site for the sake of creating the snippet is fair use too.

The idiotic part of Murdoch’s move would be that, assuming Google allows Murdoch’s publications to “opt-out” of Google (as Google does for any site — all you have to do is insert some code into your site to exclude your site from Google’s indexing), the result will be that Murdoch’s publications will lose all that traffic Google generates. Stupid, stupid, stupid.

Murdoch has always had the option to opt out of Google. The other stupid player here might be Microsoft — why pay to index something that will only be losing readership?

Money or racism? Could the Dolans just do the right thing already? The courts won’t.

The Lanham Act, the federal law governing trademarks prohibits trademarks “which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt. . . .” Nevertheless, the Supreme Court has declined to review a lower court decision (pdf download) in Pro Football, Inc. v. Harjo ruling that, even assuming the name of the Washington, D.C. football team, Redskins, is disparaging to Native Americans or brings them into contempt, the Redskins cannot be forced to give up their trademark rights. Why? Because, given the length of time that the Redskins have had the name without challenge and the delay in the plaintiffs bringing their claim, it would be unfair to deprive the football team of the profits to be made from selling goods bearing the Redskins name.

There are serious questions to be raised about the legal merits of the NFL’s position — among other points, the Lanham Act states that challenges to a trademark can come “at any time.” But my more serious question, to Daniel Snyder and to Larry Dolan, is this: why in the world would you want to make money off of a symbol so many people consider racist? Well, Larry Dolan’s answer is that he doesn’t see evidence that Chief Wahoo is racist.

It’s amazing how money can blind someone.

The EFF fights copyright overclaiming by means of public shaming

One of the problems of our legal system I’ve written about is the way its expense has conferred inordinate weight on sheer wealth. In copyright, this problem plays out in what is termed “copyright overclaiming” — the assertion of rights over content that is utterly misbegotten but not worth the expense of fighting. One means of fighting this abuse, I suppose, is public shaming, which is exactly what the Electronic Frontier Foundation is now doing with its “Takedown Hall of Shame,” a compilation of “[b]ogus copyright and trademark complaints have threatened all kinds of creative expression.”

Lawyers are beginning to learn that globalization means fewer jobs in the USA.

Did all the lawyer-lawmakers who bought into free trade realize that it isn’t just manufacturing jobs they might be selling off to other countries? Mark Kobayashi-Hillary notes that the prediction that legal services would be outsources is an old one, but he also believes that companies now are beginning to seriously explore these possibilities. One piece of evidence supporting his supposition is that “Lloyds Banking Group is negotiating a £400m acquisition of CPA Global, the patent and legal services group.”

What does CPA Global do? According to its website, CPA Global is “one of the leading legal outsourcing companies in the world, offering a full range of general legal and intellectual property (IP) support services.” Among other things, CPA Global provides

services such as document review, contract management and litigation support right through to top end intellectual property software, renewals and data management, research and consulting – assisting busy law firms and corporate legal departments throughout the litigation and IP lifecycle.

Law students and lawyers moan that if they work for “Big Law” they’ll spend years doing document review, but, hey, it’s a living. Without those jobs, the entire market, already shrinking, shrinks more. And now lawyers too begin to learn what globalization really means: selling to other countries with lower labor standards the jobs the U.S. labor market has spent a century making half-decent for the people who do them here.

Don’t lie, even if you think it doesn’t matter. Fairey, Garcia, and AP.

Now we’ve got 2 liars in the Shepard Fairey/Manny Garcia/AP lawsuit. As I mentioned the other day, there’s reason to believe Garcia is at least being highly misleading regarding his initial reaction to realizing that Shepard Fairey’s Obama Hope poster was based on his photograph. And now Fairey admits that he lied in contending that the image everyone knows he used was not the image he used. And, of course, AP is not exactly the most reliable source for legal positions on copyright and fair use.

All of these events are not particularly shocking to anyone who’s litigated for a living. Whether or not Garcia considered a lawsuit when he first realized his photograph was the source of the photo, whether or not Fairey used another photo other than the one most people had concluded he’d used, and whether or not AP is taking ridiculous positions in copyright cases are all matters that do not really bear on whether or not Fairey’s poster constitutes fair use of the photograph Garcia took (and in which Garcia and AP each claim, in opposition to one another, ownership of the copyright).

But Fairey sure didn’t help himself by lying. Nor did Garcia if it turns out he lied too. As much as a lie doesn’t change the legal question at issue in a case, there’s no denying the fact that someone’s credibility affects any court’s willingness to find in their favor.

As a lawyer, you try to tell someone never to lie. Sometimes they think you’re just “supposed to be” telling him that, and that a nod-nod, wink-wink accompanies the advice. It doesn’t.

Shepard Fairey and Manny Garcia: is Garcia lying, or is Tom Gralish(?)? Or is there some other explanation?

As much as law students and law professors want legal questions to resolve into nice, neat abstract questions, they seldom do.

Legal questions are only answered definitively by courts when those questions are necessary to resolve lawsuits, and lawsuits necessarily involve all the messy reality of human life, a messy reality which seldom allows one to merely hone straight in on some nice, neat question (like, hey, what is fair use (in some nice, easy-to-follow rule so we can definitely predict what we can and can’t do)?

One problem — the most important one for lawyers — is figuring out what happened. It’s amazing how people take the facts for granted, as if we have God’s videotape to play to a jury or something. Instead, we have conflicting evidence. And the court has to decide what it all means.

So, when Manny Garcia first learned Shepard Fairey had used his photograph for the Obama Hope poster, did he think what Fairey had done was cool and not even conceive of getting involved in a lawsuit, or was he angry at Fairey and already contemplating legal action?

Last January 23, Tom Gralish, a photographer for the Philadelphia Inquirer who also writes the blog Scene on the Road, wrote that, in a conversation with Manny Garcia two days earlier, Garcia “was quick to add he is not mad at Fairey, and he’s not looking at any lawsuits. ‘I know artists like to look at things; they see things and they make stuff. It’s a really cool piece of work. I wouldn’t mind getting a signed litho or something from the artist to put up on my wall.’”

In paragraph 45 of his Answer to Fairey’s Counterclaim, filed on September 8 in the lawsuit between himself, Fairey, and the Associated Press, Garcia “denies he stated in interviews that he was not ‘angry with Fairey or interested in joining any lawsuits.’”

Does that mean he never stated precisely those words? Or does it mean he did not express to Gralish what Gralish reported? It certainly seems to be the latter. And, if that’s the case, then is he calling Gralish a liar?

Welcome to the law.

ADDENDUM: Tom Gralish’s series of posts chronicling his efforts to identify the photograph that served as the source of Fairey’s Obama Hope poster are here. The posts re-enforce something I have suggested before: Garcia’s photograph just isn’t that original. Since the nature of the copyrighted work is relevant to any fair use analysis, and since the copyrighted work is entitled to less protection to the extent it is less creative, the generic nature of the photo militates in favor of Fairey. But I still think Fairey’s work is so obviously “transformative” that it constitutes fair use. Why? Because it had a resonance in the nation that none of the photos Gralish examined would have had on their own. If Fairey’s ability to confer that kind of power upon the source photo isn’t transformative, I ‘m not sure I know what is. And, incidentally, most of my previous posts on the case are here.

All the cash has been sucked from Simmons’ mattresses.

Is it any wonder we don’t trust Wall Street?

I saw it back in the 80’s up close and personal, when the debt was called “junk,” but the practice goes on and on and on. When credit markets are good, investors (called “private equity firms” or “merchant bankers” or “leveraged buy out firms” or the like among their peers and minions) will sell a company’s bonds to finance their purchase of the company, take fees for issuing those bonds, issue more bonds later on to take cash out of the company for themselves (and fees for the new issuance), and then, when the debt becomes to burdensome for the company, the purchasers of the bonds are left high and dry — that is, broke or, at best, with equity in a new, reorganized, and crippled company worth a fraction of what they paid for their bonds.

The latest victim? Simmons Bedding Company, the maker of the Simmons Beauty Rest Mattress. As the New York Times reports:

Simmons says it will soon file for bankruptcy protection, as part of an agreement by its current owners to sell the company — the seventh time it has been sold in a little more than two decades — all after being owned for short periods by a parade of different investment groups, known as private equity firms, which try to buy undervalued companies, mostly with borrowed money.

For many of the company’s investors, the sale will be a disaster. Its bondholders alone stand to lose more than $575 million. The company’s downfall has also devastated employees like Noble Rogers, who worked for 22 years at Simmons, most of that time at a factory outside Atlanta. He is one of 1,000 employees — more than one-quarter of the work force — laid off last year.

But Thomas H. Lee Partners of Boston has not only escaped unscathed, it has made a profit. The investment firm, which bought Simmons in 2003, has pocketed around $77 million in profit, even as the company’s fortunes have declined. THL collected hundreds of millions of dollars from the company in the form of special dividends. It also paid itself millions more in fees, first for buying the company, then for helping run it. Last year, the firm even gave itself a small raise.

Wall Street investment banks also cashed in. They collected millions for helping to arrange the takeovers and for selling the bonds that made those deals possible. All told, the various private equity owners have made around $750 million in profits from Simmons over the years.

Lying messes you up. Polanski, the rapist, and the lying prosecutor.

One thing potential witnesses have to understand about lying is that every lie creates problems regardless of whether the lie itself is found out. Every lie requires every statement after the lie — for an indefinite period of time — to account for the lie. If you say something after the lie inconsistent with the lie, you’ve got real problems. Which is the lie? The new statement? The old lie? Who is going to know, and who is going to believe anything you say?

I’m reminded of this problem with lies today because of a story Marcia Clark writes about one of the prosecutors in the Roman Polanski rape case back in 1977, after Polanski had entered a guilty plea to engaging in unlawful sexual intercourse with a minor and was awaiting what he hoped, and apparently expected, was a sentence that would not include jail time. As the Wall Street Journal Law Blog writes, “According to a 2008 documentary, called Roman Polanski: Wanted and Desired,  . . . a Los Angeles prosecutor named David Wells confessed to buttonholing the judge [presiding over Polanski's case] — out of the presence of Polanski’s lawyer — and convinced him to impose a sentence that included prison time.”

Lawyers cannot communicate with judges regarding pending cases outside of the presence of the lawyers for the other parties. It’s a major no, no, and Wells’ admitted misconduct no doubt is part of Polanski’s opposition to extradition.

But now, according to Clark, Wells recently told her:

I lied. I know I shouldn’t have done it, but I did. The director of the documentary told me it would never air in the States. I thought it made a better story if I said I’d told the judge what to do. . . . Look, after 30 years, I never thought they’d get the guy back here. I figured no one cared anymore, and no one here would ever see the film anyway. What can I say? I don’t have a better reason than that. It seemed like a good idea at the time.

Clark believes Wells. I don’t know what to believe. Was he lying in to the filmmakers or is he lying today? Why would a prosecutor tell a lie to filmmakers that would show him to be unethical? He has more reason to lie today — now there’s attention to the unethical conduct he confessed to on film, and the extradition of a rapist is at stake.

And, frankly, I don’t consider Marcia Clark the most reliable judge of anything. Don’t get me going, but the reason for the O.J. verdict to my mind was, purely and simply, incompetent lawyering  by the prosecution.

Lawyers do the best they can for clients; I wish law professors realized that’s what lawyers should always do.

As someone who has practiced over ten years and taught over ten years I am particularly sensitive to the divide between legal practice and legal academia, and I am partial to the legal practice side of the debate. It’s not that a lot of law professors don’t do a lot of good things; rather, it’s that too many law professors and too much legal education proceeds as if the world of practice is irrelevant. In fact, I am convinced that legal education and legal theory divorced from the application of law in practice is meaningless. Law does not exist except as it has the potential to affect the real world (unless you’re talking about religious law).

And it is fundamental to the practice of law that the first and primary responsibility of the lawyer is to the client’s best interests. When you start treating the client merely as a means to raise intellectual issues you find of greater interest you’re doomed to get in trouble.

Charles Nesson is a good example of a law professor who doesn’t understand how to be a lawyer. Nesson ignored the advice of many who are sympathetic to the plight of file sharers in conducting his defense of Joel Tenenbaum, a case which resulted in a $675,000 verdict against his client. There were many who considered Nesson’s defense bad lawyering, including myself. Blue Mass Group even asked whether he was “the worst lawyer ever” in a post that supported the legitimacy of the question with examples from the case:

[T]hrough the course of the litigation, Tenenbaum gave sworn statements that he then contradicted at trial. And in a dramatic moment, it seems that at the end of his testimony, just before the verdict, he actually admitted liability, causing the judge to find him liable and the leave only question of damages for the jury to decide. Who prepared Tenenbaum to testify? Did anyone bother?

It also seems that Professor Nesson made audio-recordings of depositions in the case–perhaps for use in the classroom?–without the knowledge of the lawyers on the other side of the case. This is potentially a crime, as well as an apparent violation of the Rules of Civil Procedure, which require a lawyer taking a deposition to notify the other side of the method to be used to record it (though perhaps if Professor Nesson was recording depositions taken by the other side, he would not be in violation of the rule–I’m not sure).

Now, Professor Nesson says he will appeal on the judge’s failure to instruct the jury on fair use. I’m not a copyright law expert, but I’ve heard others describe this issue as likely to lose.

In any case, it seems clear to me that Professor Nesson did not really act to protect Tenenbaum’s interest. This twenty-something graduate student is now facing bankruptcy when he could have settled the case for next to nothing.

More support for the criticism of Nesson’s job defending Tenenbaum comes today with the news that the judge in Tenenbaum’s case ordered defendants who did not even bother to defend file sharing charges to pay the minimum penalties allowed under the Copyright Act, prompting Ars Technica to point out that Tenenbaum and others like him “would have been far better off monetarily if they had simply ignored the complaint altogether and failed to show up in court.”

The sad part is Ars Technica is right — sometimes bad lawyering is worse than no lawyering.

Nesson’s response to criticism that he ignored defenses and other strategies he might have used to minimize Tenenbaum’s liability? He writes, without an ounce of apparent regret: “these defenses do not join the fundamental issues. this trial was not an exercise in getting joel off the hook.”

That’s precisely my point. If you treat a case as a means to an end and are willing to sacrifice the client’s best interests to get to that end, you are not doing your ethical duty as a lawyer. If you insist on a jury, make legal arguments there is no good reason to think will prevail, allow your client to lie in pretrial testimony and go ahead and put him on the stand anyway, flout good sense in recording hearings without having gotten the judge’s permission to do so, and then go and post those recordings on line, is it any wonder your client ends up paying a big price?

As I indicated in my last post (and numerous times on this blog and elsewhere), I am convinced the RIAA’s campaign to sue file sharers is misbegotten as a practical, business matter. I’ve even gone out of my way to try to help Nesson. (See also here.) That doesn’t mean that Nesson is a noble guy in sacrificing his client to what he considers a greater cause, and a lawyer should know better.