The Lawminatrix

The 911 call was bizarre. The hasty decision to pull the plug on Gary Coleman (in conflict with what he’d stated in his Living Will) also struck me as odd. Add to that Shannon Price’s contention that, despite their divorce, she should handle his estate because she was still his “common-law wife,” and we have an Unholy Trinity of Weirdness. Her manager claims to have seen Shannon’s pain. Good thing, because no one else has! Note to self: pick a health care proxy who doesn’t have a direct interest in hastening my demise.

admin General Law 911, commonlawmarriage, garycoleman, livingwill

Me and NASA's Chief Technologist Robert D. Braun

Space travel may seem a little far afield from my customary topics, but considering that funding for NASA involves the Spending Clause, I think the law angle’s covered. Now, on to the awesomeness! I had the honor of attending the NASA Tweetup on May 13 and 14 at Kennedy Space Center. The agenda included remarks from Deputy Administrator Lori Garver, Chief Technologist Robert Braun, Astronauts Janice Voss and Dave Wolf, and so many other incredibly intelligent and articulate people, but that wasn’t the best part.

One-hundred fifty lucky Tweeters (myself included) got to witness the launch of STS-132 Atlantis from the press area, a mere three miles from the launch site. Watching liftoff shoulder to shoulder with space fanatics and members of the press was awe inspiring and humbling all at once. As I learned at the Tweetup, NASA employs 18,000 people. I’m sure it took every one of them to get the shuttle off safely!

Now that the giddiness has worn off, I wanted to take a moment to reiterate the importance of space exploration. When Neil Armstrong walked on the moon, NASA’s budget was fully 10 percent of the national budget. Today it constitutes less than 1 percent. Of course, this type of technology is expensive, but as Equipment Specialist Ron Woods observed “every dollar spent on space technology goes right back into the pockets of the American people.”

For those who aren’t interested in space exploration or don’t think the expense of the space program is justified, consider what NASA is studying from space: EARTH. Our planet’s environment, our atmosphere, technology that might help us to preserve our planet so we can continue living here despite our inadvertently damaging our precious orb over the course of industrialization.

I’m a huge NASA fan and, although I’ll miss the shuttle program, Lori Garver and Robert Braun made the case for moving forward and developing new technologies and innovations that will bring our space program into the next decade. If you need more persuasion, follow @NASA, @BobbyBraun_NASA and @Lori_Garver on Twitter. I also recommend following Jon Cowart (@Rocky_Sci), because he’s one funny NASA guy!

And NASA take note: if you’re starting a program to send lawyers into space, Tweet me!

admin NASA Atlantis, NASA, STS-132, Tweetup, Twitter

As recently as 1997, being judged solely on our DNA was a concept reserved for futuristic SciFi movies like Gattaca. Be warned: the future is now! Despite 2008 legislation prohibiting genetic discrimination, some people apparently think it’s okay to fire an exemplary employee simply because she carries the gene for breast cancer. Now, I’m a realist, and it may turn out that there were other, nondiscriminatory reasons for this firing…but I doubt it. This employee’s only bad choice was confiding in her employer about the genetic test results. Soon, genetic tests will be available at pharmacies over the counter. If you’re really concerned, buy one of those (and pay cash, if you really want to be off the grid). Then, if you find something concerning, you might opt to open Pandora’s box and use your health insurance to consult a qualified physician. Sure, it’s illegal for employers to fire you because of your genetic test results, but as the old adage goes (kind of), a $30 genetic test kit is worth $100,000 in attorney’s fees.

admin General Law discrimination genetictest dna GINA genetic firing

The beleaguered music industry has precious few loyal allies left on whom it can rely to provide free PR for new artists via blogs and other new media outlets. Unfortunately, Google pulled the plug on several of the most popular music blogs last week after an automated infringement detection system flagged them as copyright criminals and the labels issued takedown notices under the DMCA. The problem is that many of these bloggers had permission to post the MP3s at issue, and/or had taken these files down already, leaving only a broken link. The bot couldn’t tell the difference.

So, here’s the thing. Copyright protects owners against the distribution of music without their permission. Of course, it would be preferable if they didn’t also come down on those to whom they have granted permission, even through an automated intermediary. By the by, not too many of these bloggers make a profit, so although their posting of music might be infringement, they’re not earning money off of it, and in some instances may have a case for “fair use” if they’re simply posting a small sample in order to comment on the artist, music style, etc. However, the music industry apparently has a short memory as far as the great service done them by these bloggers. It seems the record companies would rather net a large number of “pirates,” even though they inadvertently trap a number of law-abiding bloggers as well.

Those in the know have been monitoring with interest the buzz on proposed “three-strikes” policies that would enable ISPs to cut off Internet access to those accused of online copyright infringement three times. Notice I said “accused.” That is because the policies to date have included no proof requirement. Excuse me? How is it remotely productive to punish people without proof, some of whom will actually be innocent? In one instance, a woman with an unsecured wireless network in her home nearly lost her Internet access after kids at a nearby school used her network to download and torrent. Careless on her part, of course, but hardly the kind of culpable malfeasance that would justify pulling her plug (and killing her business — run out of a home office — that relied on Internet as well).

1) There’s no substitute for actually clicking a link to see if the allegedly infringing content is in fact online to be taken down in the first place.

2) Whether or not Internet access is a Constitutional right in the U.S., it’s an indispensable part of everyday life. Music industry execs would do well to remember that encouraging ISPs to kick people offline will not force consumers into the nearest Wal-Mart to purchase CDs, but will instead incite a riot.

3) Music bloggers are doing the industry a favor. Seriously. Think about it.

admin Copyright DMCA, infringement, music, three-strikes

Two hundred years ago tomorrow, fifty-seven-year-old Connecticut woman Mary Dixon Kies obtained a patent on her method of weaving straw with silk. Kies had hoped to parlay her invention into success in the American hat industry, but hat enthusiasts never took to the fabric, and she never made money off her innovation. [Cliche alert! Dead ahead.] Nonetheless, it is quite a “feather in her cap” that she was the first female patentholder in the U.S.

Carved into her tombstone is a rather unusual epitaph: “She obtained in May 1809 the first patent ever issued to a woman.”

Rarely does IP law make its way onto a gravestone carving! They could have at least rhymed. “Here lies Mary Kies. Sold no hats, but she sure tried”? “Mary Kies held a patent, tried to profit but got flattened”? Okay, reaching on that last one, but Steve Miller would be okay with it.

In any event, Happy Anniversary, Mary Dixon Kies! You paved the way for female inventors everywhere, and we’re indebted to you.

admin Patent epitaph, first female patentholder, Mary Dixon Kies

In the aftermath of their convictions for copyright infringement, the “masterminds” behind Pirate Bay in Sweden want to draw the public’s attention to recent research indicating that those who engage in illegal P2P file sharing often go on to purchase the music legally.

Anyone detect an odor? I’d say it’s getting pretty ripe. People may sample a particular artist’s work before committing to purchasing large volumes, but once they’ve got a track, they’re not going to buy that particular track (obviously).

More importantly, whatever people may do after illegally downloading files does not bear on whether Pirate Bay is vicariously liable for copyright infringement by virtue of their business model. As others have pointed out, search engines direct users to all relevant content, legal or illegal, but Pirate Bay funneled them directly to the “juicy” stuff - copyrighted files available for download.

To look on the bright side, the Pirate Bay defendants will have a year in close proximity to people who are intimately familiar with the criminal mindset, so follow-up research should prove convenient.

admin Copyright convictions, infringement, music, Pirate Bay

Most folks think patent law is pure torture: arcane at best, and irrelevant at worst, but they’re wrong. Protecting inventors’ rights has real implications for us all, and may perhaps be best demonstrated by this story. It’s about a six-year-old boy who invented a ride-on car with an IV pole attached, so that hospitalized children who had been intubated could play without having Mom or Dad jog alongside them with the IV pole.

This patent was criticized by some, who viewed it as obvious, and yet we have to wonder why this “obvious” contraption had never before been built for sick children. The reason patent law matters is because it provides inventors with a financial incentive to share their ideas. Without the protection a patent provides, they’d be forced to stay quiet if only to prevent someone else from wrongfully capitalizing on their idea.

The Patent Reform Act of 2009 is rocketing through Congress now. If you haven’t read up on it, check out the senate version and the house version, and be sure your voice is heard before becomes fait accompli! Patent law matters: ask a child riding in a “KidKare” car courtesy of young inventor Spencer Whale.

Just thought I’d share a story that warms the heart and involves patent law – a rare combination! I have to get back to my inventing. I’m working on an office chair with a keg attachment!

admin Patent, Uncategorized invention, Patent Reform Act of 2009

Since when is reading aloud a copyright violation? Have the thousands of PSAs encouraging us to read to our children actually been solicitations to commit the crime of copyright infringement? Should we brace ourselves to see federal agents swarming the “Reading Rainbow” book van?

That must be the case, if we’re to believe publishers who claim that the Kindle 2’s text-to-speech feature infringes copyright owners’ exclusive right to create derivative works (audio books). 

Beg pardon? If my GPS’s “voice” is any indication, this thing won’t be any substitute for the audio book!

I can barely understand the thing when it tries to read street names, so I stick to “Turn Left” and “Turn Right.”There’s a reason people shell out cash to have celebrity voices give directions from their GPS. Shouldn’t that fact tip off publishers to the fact that celebrity voices will always sell audio books? I can’t see the Kindle 2 reducing sales of Thomas the Tank Engine on CD, guys, so let’s all take a step back to reassess!

Amazon says the text-to-speech feature is perfectly legal, but nonetheless folded like a rickety card table when copyright holders objected to the Kindle’s text-to-speech feature. Litigation is costly, after all, even when one is ultimately victorious, and tweaking the noses of publishers is unwise for a book vendor.

Still, Amazon isn’t exactly a little Mom and Pop bookstore, and I’d have hoped to see them stand up for their customers, who by all accounts want this feature.

For now, Amazon’s made the feature “opt-in,” which  means publishers will specify which books customers will be able to hear using the Kindle 2’s text-to-speech capability. 

Because it won’t be at all annoying for me to try and figure out which of my purchases I can listen to during my commute, and which will have to wait until I can devote my undivided attention to reading. From “Kindle” to “kindling,” I guess.

admin Copyright Amazon, infringement, Kindle, text-to-speech

Three jurors who handed down a “guilty” verdict in the 1993 murder trial of Alfred Trenkler have written to the judge who presided over the proceedings in an effort to procure another crack at justice for the convicted bomber.

Why? Because they read Perfectly Innocent, a book chock full of “evidence” they didn’t see while the case was ongoing. 

To recap: a full and fair trial of the defendant resulted in a finding that he had placed a bomb that detonated while a police officer was trying to disarm it. The blast killed Boston police officer Jeremiah J. Hurley Jr., and maimed a fellow officer.

There’s a reason some evidence is not admitted at trial. I won’t explain the Rules of Evidence here, but suffice it to say that what’s excluded is kept out because it is not reliable, or because any “probative value” it may have is outweighed by the likelihood that it will cause jurors to reach a verdict based on emotion rather than fact.

It’s probably true that, in most cases, jurors would “switch sides” (or at least think about it) if given the chance to review all the proffered evidence that was not admitted at trial. Excluded evidence is generally sensational, like “hearsay” / gossip, really graphic photos, unauthenticated “damning” letters, etc.

For the unindoctrinated, this is exactly why jurors are not allowed to see it! It’s persuasive but not necessarily accurate. Enter the tell-all book, a thorough description of all available “proof” tending to show that the (long since convicted) defendant may be innocent.

In this case, the hero is played by attorney Morrison Bonpasse who, notably, had no involvement in the Trenkler case. His passion for vindicating a man he perceives to be innocent is commendable, but he should know better than most that only new evidence, not available at the time of trial, would convince a judge to retry the case. Excluded evidence that had no place in the courtroom to begin with cannot provide the basis of a motion for a new trial.

The only thing Attorney Bonpasse’s book serves to reopen are the wounds of the victims’ families. Perfectly Innocent? “Perfectly Insensitive” is more like it.

admin General Law crime, evidence, trenkler, trial

Comic book writer Robert Cabell has filed a copyright infringement suit against Adam Sandler’s production company (Happy Madison Productions), Sony and Columbia Pictures. The allegation: that defendants based “Don’t Mess With The Zohan” on Cabell’s movie idea, which featured a gay Navy SEAL named “Jayms Blonde” who becomes a hairdresser and uses his tricked-out blow-dryer to go after evil corporate types. Cabell allegedly pitched the idea of a Jayms Blonde movie to Columbia Pictures in Fall 2007, although “Zohan” was already in production at that point.

A few points Cabell might take notice of:

1. “Don’t Mess With The Zohan” was hardly a cinematic masterpiece. Do you really want to say “Hey, that stinkbomb was MY idea!” Seriously, did Cabell even watch this movie?

2. Ian Fleming Estate take note: Cabell’s hijacking the goodwill built into your James Bond trademark. Cabell: “Sandler stole my stolen character!” James Bond actually is blonde these days, you know.

3. You can’t copyright an idea - only the expression of that idea. Anyone can make a movie about a gay (or apparently gay or straight) former special ops person who longs to become a butt-kicking, blow-drying, hair-dying hairdresser. They just can’t use your screenplay to do it. (See Funky Films, Inc. v. Time Warner Entertainment Co., 462 F.3d 1072 (9th Cir., 2006) (affirming trial court’s finding of no infringement when Time Warner developed “Six Feet Under,” a TV series that contained similar story elements to “The Funk Parlor,” a screenplay Funky Films had pitched).

So back off The Zohan: he just wants to make people “silky-smooth.” Ugh.

admin Copyright, Trademark Adam Sandler, infringement, James Bond, Zohan