Is Skype to be Joltid by Kazaa Developers? Was the $2.6 Billion eBay Purchase of Internet Telephony made without the underlying P2P Software ?

Loz Blain at Gizmag.com covers the strange dispute between Skype and Joltid under the headline: Licensing issues threaten to shut Skype down for good:

When eBay bought Skype from Joltid in 2005, the whopping US$2.6 billion price tag didn’t include the Global Index peer-to-peer software that the world’s biggest Internet Telephony system is based on….

[E]xcerpt[s] from a quarterly report filed with the US Securities and Exchange Commission explain … eBay’s tenuous position [inter alia] … :

‘Joltid has alleged that Skype should not possess, use or modify certain software source code and that, by doing so, and by disclosing such code in certain U.S. patent cases pursuant to orders from U.S. courts, Skype has breached the license agreement.’

techdirt has a very informative posting in the same vein about Skype Founders Claim eBay No Longer Has A Right To Skype’s Core Tech in which they write:

Apparently, the claim is that Niklas Zennstrom and Janus Friis and a separate company they ran, Joltid, only licensed the underlying technology to eBay/Skype for a limited time — and that deal has now concluded. The two companies are scheduled to fight this out in court….

How the hell did eBay make a deal and not make sure it had either purchased (entirely) the core underlying technology or had a guaranteed perpetual license that couldn’t be revoked? … you have to wonder if it’s actually true.

In the meantime, since there are questions about how eBay can rebuild Skype’s underlying core technology without violating the many patents in the space, it makes you wonder if eBay may be forced to simply buy someone else’s technology.”

As Loz Blain writes, this legal dispute is a problem for IPO plans of eBay:

[T]his legal challenge could completely shut Skype down – so naturally enough, that black cloud will scuttle any IPO plans that eBay had to raise money from its difficult child.

If eBay is able to come up with an alternative platform that keeps Skype’s customers happy while abandoning Global Index and not causing any IP issues then it can go ahead with an IPO. But this is a herculean undertaking that even eBay admits it’s not very confident about. Given it’s already a cash sink for eBay, you’d have to wonder if the company is likely to throw big dollars at developing or acquiring another technology.

But if June 2010 comes around and eBay hasn’t sorted anything out, and the court case starts looking like it’s going Joltid’s way, then suddenly Joltid will be in an excellent position to put in a bargain-basement offer to buy Skype (and its projected US$1 billion 2011 revenue) back from eBay and laugh all the way to the bank.

With the future of the world’s favorite Internet Telephony service at stake, it will be fascinating to see how this plays out.”

In any event, this is a bizarre development – not unusual for this treacherous legal field – where the creators of the world’s worst offending illegal file sharing applications are now themselves relying on intellectual property law to protect their alleged IP rights.

The court proceedings in the Joltid case are scheduled for June, 2010.

Joltid is a company which was initially affiliated with Kazaa, a file sharing application used mostly for illegal music piracy. As written at the Wikipedia:

Kazaa and FastTrack were created by Niklas Zennström, Janus Friis, and Priit Kasesalu (all of whom were later to create Skype and later still Joost). It was introduced by their Dutch company Consumer Empowerment in March 2001, near the end of the first generation of P2P networks typified by the shutdown of Napster in July 2001….

Consumer Empowerment was sued in the Netherlands in 2001 by the Dutch music publishing body, Buma/Stemra. In November 2001, the court ordered Kazaa’s owners to take steps to prevent its users from violating copyrights or else pay a heavy fine. Consumer Empowerment responded by selling the Kazaa application to a complicated mesh of offshore companies, primarily Sharman Networks, headquartered in Australia and incorporated in Vanuatu….

Kazaa’s legal issues have ended after a settlement of $100 million in reparations to the recording industry. Kazaa, including the domain name, has since been sold off to Brilliant Digital Entertainment, Inc. Kazaa currently operates as a monthly subscription service that allows users to download unlimited songs for $19.98 and listen to them on up to three other computers. However, songs downloaded with Kazaa are not playable on portable devices, and cannot be listened to without an active subscription to the service.

Some users still use the old network on the unauthorized versions of Kazaa, either Kazaa Lite or Kazaa Resurrection, which is still a self-sustaining network where tens of thousands of users still share unrestricted content. This fact was previously stated by Kazaa when they claimed their FastTrack network was not centralized (like the old Napster), but instead a link between millions of computers around the world.

However, in the wake of the bad publicity and lawsuits, the number of users on Kazaa Lite has dropped dramatically. They have gone from several millions users at a given time to mere hundred thousands or now just tens of thousands. Before, all users were combined on the same FastTrack network, with some using the ad-supported Kazaa, and others using Kazaa Lite and other non-authorized versions all sharing countless songs, movies, etc. The size of the lawsuits Kazaa settled is said to only have been insignificant compared to the amount of media that was illegally duplicated and delivered to millions of users on Kazaa prior to the suit.

Without further recourse, and until the lawsuit was settled, the RIAA actively sued thousands of people across the USA for sharing copyrighted music across the network. College campus networks were also a focus of the RIAA’s many lawsuits. Many of these cases are still in the process of being settled or are headed for trial. Although the lawsuits were mainly in the United States, other countries also began to follow suit….

Kazaa has, from early on, been suspected of installing malware onto users’ computers. Sharman, Kazaa’s home company, claims that the products are not adware and do not collect personal user information. At one time, the part of the Kazaa code which was considered adware was an optional part of the Kazaa program, albeit one technically difficult to omit during installation. Since the allegations have surfaced, however, the code has been bundled into the main Kazaa software, and it is not possible to uninstall it. Also, spyware detection and removal software has frequently failed to delete the code without special actions taken by the PC user. Spyware components detected and deleted by removal programs will often render Kazaa unusable and require reinstallation of the program. This forces the user to allow these programs on their computer to keep Kazaa working. The malware cannot be ended with conventional methods, and the Windows Task Manager must be used.

Given its shady background, it is little wonder that Joltid has only a one-page web presence without any contact details or addresses outside of an email address info@joltid.com that might be used to inform the Joltid owners what one thinks about their threat to shut down Skype.

In the case of Joltid we have here – in our opinion – another typical IP instance of overly greedy intellectual property rights holders who are prepared to try to hold a good share of the world’s communication population (480 million registered Skype users) for ransom simply because of their own petty personal selfish interests. We have little patience with such philosophies.

IP rights holders in general must be told time and again in strong and stern judicial language that intellectual property rights do not somehow bestow world imperial rights upon them.

Indeed, quite apart from the legal issues, IP rights holders who have already pocketed $2.6 billion for the Skype sale but who still have no qualms about threatening a shutdown for the community of Skype users should in fact – in our opinion – be permanently exiled from the global technological community.

Alas, the realities of the digital world are neither just nor fair, and the founders of Kazaa and Skype are already long off on another project, Joost, financially supported by a bevy of eager venture capitalists whose sole business is the prospect of multiplying dollar signs.

That is the true face of modern technology: cash rules.

Auto Clunker Plan Update : Car Allowance Rebate System to be Extended by $2 Billion as House Passes Emergency Funding : Senate Approval Pending

Matthew L. Wald reports at the New York Times that House Votes for $2 Billion Fund to Extend ‘Clunker’ Plan.

What Goes on Here? Cash for Clunkers Auto Rebate Program Runs Out of Money While Bankdog Millionaires Stuff their Pockets with Bailout Money

Slumdog Millionaire – the rags to riches story of a Mumbai slum child – won eight Oscars at the 81st Annual Academy Awards in 2009, including best film of the year.

Based on recent reports about billions of dollars in bailout money paid out as “bonuses” by banks to their employees in spite of the financial crisis which many of the bonus recipients surely helped to create, we suggest a “rich to richer” U.S. cinema sequel with the title “Bankdog Millionaire“.

Many newspapers have already picked up the facts upon which the “bankdog” story could be based. In the New York Times article, for example, Louise Story and Eric Dash report in Big Banks Paid Billions in Bonuses Amid Wall St. Crisis that:

All told, the bonus pools at the nine banks that received bailout money was $32.6 billion, while those banks lost $81 billion.”

The various news reports rely upon a report just released by New York State Attorney General Andrew Cuomo under the title “No Rhyme or Reason: The ‘Heads I Win, Tails You Lose’ Bank Bonus Culture“, which concludes on the basis of a probe into the way that big banks operate that:

When the banks did well, their employees were paid well. When the banks did poorly, their employees were paid well. And when the banks did very poorly, they were bailed out by taxpayers and their employees were still paid well,” Cuomo said in a summary of the investigation. “Bonuses and overall compensation did not vary significantly as profits diminished.

The Los Angeles Times writes:

The attorney general’s report — subtitled, “The ‘Heads I Win, Tails You Lose’ Bank Bonus Culture” — focuses in part on the 2008 bonuses paid by major banks that received government capital under the Troubled Asset Relief Program.

He found that Citigroup Inc., for example, paid out $5.3 billion in bonuses for 2008 even though the bank lost $27.7 billion and needed $45 billion in TARP capital to bolster its balance sheet.

A total of 783 Citigroup employees got bonuses of at least $1 million, Cuomo said.

Merrill Lynch & Co., which lost $27.6 billion for the year, paid bonuses of $3.6 billion, according to Cuomo’s tally.”

Those are bank rip-offs which make normal criminal “bank heists” look like chicken feed.

At the same time – just to put things into the proper financial and political perspective – the paltry $1 billion that the U.S. government allocated for the nationwide “Cash for Clunkers Auto Rebate Program” to get the automotive industry moving again was used up as an amount in the first week of operation. Matthew L. Wald (with Katharine Q. Seelye as contributor) at the New York Times in ‘Clunkers’ Auto Rebate Plan So Popular That It’s Broke writes:

New-car shoppers appear to have already snapped up all the $1 billion that Congress appropriated for the “cash for clunkers” program, leading the Transportation Department to tell auto dealers Thursday night to stop offering the rebates.

Apparently it is more important to funnel billions of dollars into the bank accounts of the greedy.

Essentially, when all is said and done, the “bailout banks” and other big banks and investment banking houses are operating as self-service pots of gold for their top echelons, who smilingly stuff their pockets with their bank’s money, relying on what they of course claim are legitimate bonus contracts – made by them, but which contracts are actually designed for those top echelons to massively misappropriate the assets of investors and depositors – and now the bailout taxpayers – by cleverly premeditated plans of what amounts to nothing more than passively collusive corporate embezzlement. The Legal Dictionary at Free Dictionary defines embezzlement:

There was no crime of embezzlement under the Common Law. It is a statutory crime that evolved from Larceny. Whereas larceny requires a felonious trespassory taking of property at the outset, embezzlement is a wrongful appropriation subsequent to an originally lawful taking. Embezzlement is, therefore, a modification of larceny designed to cover certain fraudulent acts that do not come within its scope. Although they are mutually exclusive crimes, larceny and embezzlement do overlap slightly under statutes in some states.

Embezzlement was created by the English legislature, which designated specific persons who might be liable for the offense. These were essentially persons entrusted with another’s property, such as agents, attorneys, bankers, and corporate officers.

The English definition of the offense is followed in the United States. Statutes do not usually list the persons who might be liable but, instead, generally describe the offender as a person entrusted with, or in possession of, another’s property.

Exorbitant bonus contracts bearing no reasonable relationship to the salary of employees or to the actual services or benefits performed are merely cloaked embezzlement agreements – and recipients of the money know full well they are ripping off their depositors and investors.

This is corporate corruption in its most highly developed state. Monies are not embezzled secretly, but are rather misappropriated in gigantic quantities right in front of everyone’s noses under the cover of legitimacy.

It is a nearly foolproof scam for the inner circle of bankers – who are aided by the incompetent ignorance of many of the popularly elected – and increasingly ill-qualified – representatives in Congress, who sometimes seem to prefer to waste their time on religious rather than secular issues or, for example, on senselessly grilling Supreme Court nominees ad nauseam rather than properly legislating the nation’s affairs.

Perhaps people in Congress should be given CLE lessons in the difference between true entrepeneurial capitalism – which should continue to be rewarded – and blatant bank theft – for which many of these bonus recipients should probably be compensated with a term in jail.

The odds that anything will improve in the near future are however quite small and all signs point toward the continued plundering of America by a small and rapacious minority of greedy yahoos (in the Gulliver Swift sense) and their clueless legislative and regulatory enablers.

Willful Unauthorized File Sharing (Downloading & Distribution) of Music is Copyright Infringement : Fair Use is NOT a Defense for Online Piracy

In the landmark Tenenbaum file sharing case, liberal U.S. Federal Judge Nancy Gertner of the U.S. District Court for Massachusetts, a Clinton appointee who is certainly one of the more modern of today’s judges as a blogging federal judge – see also Slate and Sentencing Law and Policy) – whose legal career is marked by devotion to women, minorities, and the poor – has nevertheless ruled in favor of intellectual property rights that unauthorized music file downloading and distribution is NOT a “fair use” exception under the copyright laws.

Music piracy (viz. unauthorized file sharing or file swapping) or any other kind of willful intellectual property (IP) piracy (downloading and distribution) online is thus clearly a form of illegal copyright infringement and there has really never been any serious doubt about this as a matter of law.

And yet, because illegal filesharing is costly to detect and difficult to enforce at law, music piracy especially is so widespread that the Institute for Policy Innovation has calculated that IP piracy is costing the U.S. economy many billions of dollars a year:

The True Cost of Copyright Industry Piracy to the U.S. Economy

The True Cost of Motion Picture Piracy to the U.S. Economy

The True Cost of Sound Recording Piracy to the U.S. Economy

Therefore, several years ago, the much maligned RIAA (Recording Industry Association of America), representing recording companies that are in part fighting for their ultimate economic survival, engaged in a campaign to bring legal causes of action against the worst offenders among the file sharers, a campaign which has now ended, except for any active remaining legal cases.

As written at Wired in January, 2009:

Last month, the RIAA announced it was abandoning its file sharing legal campaign, which has targeted more than 30,000 individuals but would continue with cases already in the pipeline. Most cases settled out of court for a few thousand dollars.…”

One of the remaining music filesharing legal cases involving P2P (peer to peer networking) is “the Tenenbaum case“, a civil – not a criminal – action against a Boston University graduate student – a doctoral candidate.

Mike Harvey writes at the Times Online:

The major recording labels accuse Joel Tenenbaum, 25, of Providence, Rhode Island, of downloading and distributing songs from bands such as Green Day and Aerosmith through the Kazaa peer-to-peer site….

The recording industry in America has typically offered to settle cases for about $5,000, though it has said that it stopped filing such lawsuits last August and is instead working with internet service providers to fight the worst offenders. Cases already filed are proceeding to trial.

Jaikumar Vijayan writes at Computer World:

Tenenbaum, 25, was sued for copyright infringement by the Recording Industry Association of America (RIAA) in 2007. His case shot to prominence last fall when Harvard law school professor Charles Nesson announced he would represent Tenenbaum in his fight with the RIAA. The trade group claims to have found more than 800 songs stored illegally in a shared folder on Tenenbaum’s computer, although the lawsuit only identifies 30 of those songs. The statutes under which Tenenbaum is being sued allow for statutory damages of up to $150,000 per infringement or up to $4.5 million if the maximum penalties are applied in this case.

The Tenenbaum case is only the second RIAA music lawsuit to go to trial. The other case ended last month with a federal jury in Minnesota assessing damages of $1.92 million against Jammie Thomas-Rasset, a woman accused of illegally distributing 24 copyrighted songs. The award for the RIAA was nearly nine times the original $222,000 fine levied against her in an earlier trial. That award had been overturned on technical grounds.”

Lawyers for Tenenbaum have informally stated that they are without a real defense as a consequence of the rejection of the fair use defense by the trial judge, Nancy Gertner, so that the case will now turn on the damages issue, which will be decided by the jury, but also there, Tenenbaum does not stand much of a chance, since the law is clear.

For details, see Ben Sheffner at ars technica and Copyrights & Campaigns, where he has a comprehensive discussion of the case.

Richard Korman at ZDNet Government has commented on the broad arguments raised by Tenenbaum’s counsel, Harvard Law professor Charles R. Nesson, writing irreverently:

Perhaps the Harvard team was more interested in making a broad alternative restatement of copyright law than in parsing Joel’s admissions in a way that would have allowed them to preserve some remnant of fair use. Maybe that’s what happens when academics waltz into the courtroom?”

Nesson of course is “trying” the RIAA and the legal system more than “defending” his client per se in an area of law where no absolute legal solution has yet been found for the unique intellectual property problems that the Internet raises. In addition, one must be aware of an op-ed written in the Harvard Crimson by Nesson and Wendy M. Seltzer titled Protect Harvard from the RIAA, which isolates the controversial core of the problem involved in the Tenenbaum case from the standpoint of educational institutions:

Students and faculty use the Internet to gather and share knowledge now more than ever….

“[N]ew deterrence and education initiatives” from the Recording Industry Association of America (RIAA) threaten access to this vibrant resource. The RIAA has already requested that universities serve as conduits for … “pre-litigation letters….”

[T]hese responses distort the University’s educational mission. They impose financial and non-monetary costs, including compromised student privacy, limited access to genuine educational resources, and restricted opportunities for new creative expression….

[W]hen copyright protection starts requiring the cooperation of uninvolved parties, at the cost of both financial and mission harm, those external costs outweigh its benefits. We need not condone infringement to conclude that 19th- and 20th-century copyright law is poorly suited to promote 21st-century knowledge. The old copyright-business models are inefficient ways to give artists incentives in the new digital environment.

Both law and technology will continue to evolve….

The University’s educational mission is broader than the RIAA’s demands. We don’t have all the answers either, but rather than capitulating to special interests, we should continue to search for fair solutions that represent the University’s mission, its students, and the law in a way that educates students to be leaders of the digital 21st century.

The problems that Nesson and Seltzer address are by no means “academic”: see EFF, Engadget (with list of top 25 universities receiving infringement notices from the RIAA).

The RIAA countered with its stance on music piracy:

Q: What is the RIAA’s official stance on digital music piracy?

…. When you go online and download songs without permission, you are stealing….

The law is quite clear here….

Q: How much money does the recording industry lose from piracy?

… [M]usic piracy causes $12.5 billion of economic losses every year, 71,060 U.S. jobs lost, a loss of $2.7 billion in workers’ earnings, and a loss of $422 million in tax revenues, $291 million in personal income tax and $131 million in lost corporate income and production taxes….

Q: Has the RIAA stopped filing lawsuits against individuals?

In light of new opportunities to deter copyright infringement, the record industry was able to discontinue its broad-based end user litigation program…. On a parallel track, we have been able to reach a separate agreement in principle with several leading ISPs on a graduated response program for repeat offenders when they are caught engaging in illegal activity online….

Q: What would the RIAA like people to know about the lawsuit program now that it has ended?

The program was designed to educate fans about the law, the consequences of breaking the law, and raise awareness about all the great legal sites in the music marketplace. Like any tough decision, there are trade offs. On balance, the legal marketplace is far better off because of the program….

Q: What is your strategy with colleges now that you are no longer sending pre-litigation letters?

That process has not sufficiently changed beyond ceasing to file new lawsuits…. Over the course of the past couple of years, as the technology to detect online theft has improved, we have sent an increased number of notices to universities….

It’s also important to note that we know college students are some of the most avid music fans…. Like students, we are huge fans of music and want to see a thriving music community that continues to develop exciting new bands for current and future generations.

Q: What does the RIAA consider the university’s responsibility to be in curtailing file sharing? What happens when a university does not cooperate in mediating offenses by students?

… We believe that university leaders have a responsibility to acknowledge campus piracy, to take steps to prevent the theft from occurring in the first place, and to demonstrate leadership in teaching students that music has value and there are right and wrong ways to acquire it….

Q: What steps can colleges and universities take to address piracy on its networks?

Educational institutions are uniquely positioned to shape student attitudes toward copyright….

Q: Is it still illegal to download music on P2P sites like LimeWire, BitTorrent and Ares?

Absolutely….

For more political controversy see e-Commerce and TechLaw.

CyberOne: Law in the Court of Public Opinion and JoelFightsBack.com side with Tenenbaum against the RIAA.

PlagiarismToday keeps general track of trial progress.

A related technical idea is the idea of “dark nets”, private nets of the future graphically imaged at p2pnet.net news as follows and showing the difficulties which IP protection will face in the years ahead:

Associated Press (AP, A.P.) to Require Licensing Agreements for News and Headlines : Thomson Reuters & OpenCalais New Content Economy

We posted previously at LawPundit about the Commercial Use of Newspaper Headlines Without Permission [as] Copyright Infringement in Japan. There is little doubt under the world’s copyright laws that the same standard applies in other countries as well.

TeachingMedia writes:

What are the pressures on news organizations today; how is news made and who makes it; what is the function of a gatekeeper of news; how is news received and understood?

Let’s be frank. It is a rare website or blog that “makes” original news. For that, the resources available to websites and blogs are simply too small. Almost all bloggers are accessories to the news, functioning as pundits who comment on basic news events sourced elsewhere – with exceptions of course.

A syndicated RSS feed from a blog is however no different than a syndicated newspaper column, except that a blog will generally use “news” material produced by news organizations as the basis for its commentary, rather than vice versa.

The fact is that the bulk of the “real” news is made by journalism professionals, i.e. the journalistic “big boys”, like the AP or Reuters (now part of Thomson Reuters, the world’s world’s largest international multimedia news agency).

The Association Press (“AP”, “A.P”) is by several standards of measure the largest news organization in the world, operating as “a not-for-profit cooperative with more than 4,000 employees working in more than 240 worldwide bureaus [and] owned by its 1,500 U.S. daily newspaper members.

According to Richard Perez-Pena in his July 23, 2009 article at the New York Times, the A.P. Cracks Down on Unpaid Use of Articles on Web, the Associated Press is no longer going to stand idly by and let its work be used for commercial purposes by others without just compensation. As Perez-Pena writes:

Taking a new hard line that news articles should not turn up on search engines and Web sites without permission, The Associated Press said Thursday that it would add software to each article that shows what limits apply to the rights to use it, and that notifies The A.P. about how the article is used.

We agree with the newly declared A.P. policy – which will only minimally affect normal non-profit blogs, who generally will not require a license to quote AP materials – but that policy will demand licenses (and payments) from those using their headlines and news reports commercially.

The salaries for the AP news staff and for the infrastructure that supports them has to be funded somehow and their work must be paid.

Thomson Reuters has taken a somewhat different approach in its attitude to content syndication with its support of OpenCalais where it is written that “Calais is a rapidly growing toolkit of capabilities that allow you to readily incorporate state-of-the-art semantic functionality within your blog, content management system, website or application.” Take a look.

Judge Posner Stands Corrected at LawPundit for Using Faulty Reasoning Regarding the Consumer Financial Protection Agency Act of 2009

Via Debra Cassens Weiss at the ABA Journal in Posner Questions Behavioral Economists and Proposed Credit Regulator we go to federal appeals judge Richard Posner and his WSJ editorial Treating Financial Consumers as Consenting Adults in which he criticizes a “paternalistic” Consumer Financial Protection Agency Act of 2009 asking:

Is the choice among such alternatives really beyond the cognitive competence of the average home buyer? Is three minutes the limit of his attention span?

As you should know, Judge Posner, and as the 140 character limitation on messages at the popular Twitter microblogger amply prove, the answer to your question is “yes”. How long have you been a judge that you do not know this? Just look at the TV fare that your “average man” watches – as Berlusconi has said, the intelligence level of a 14-year old marks the average citizen.

Judge Posner queries us in closing:

Behavioral economists are right to point to the limitations of human cognition. But if they have the same cognitive limitations as consumers, should they be designing systems of consumer protection?

Judge Posner, by the same logic of your reasoning, should YOU be challenging the Consumer Financial Protection Agency Act of 2009 and judging the nation’s laws?

By your very challenge, you are implicitly using “your reputation as an expert” to challenge something that “other experts” want to implement. If you challenge their right to call upon that expertise, then that same challenge applies to your own expertise as well.

Indeed, by the same faulty reasoning that you employ, we might as well be living in caves, as some of the groups that are terrorizing the world apparently desire – why strive to improve the world and make the world better? It will all turn out differently in the end anyway.

No, in spite of all human limitations, history proves that it is better that we as humans and as a nation continue to try to improve things rather than to let everything fall into a heap just because we are not perfect.

Hence, in spite of all the cognitive limitations that experts also have, it is surely desirable to have experts try to make sensible rules about contracts which your average layman has as good as NO CLUE about. We call that an ultimate form of “consumer protection”.

Twitter and the Matter of Twitter-User Hijacked Names : What about the Names of Law Firms ?

Martha Neil at the ABA Journal Legal Technology Law News Now in her July 17, 2009 article asks

Did BigLaw Snag Twitter Usernames, or Were They ‘Twitterjacked’?

citing to a Law.com Legal Blog Watch posting by guest blogger Bruce Carton, “editor of Securities Docket, an online publication that tracks securities litigation and enforcement developments on a global basis.

We posted previously about Twitter as a service that is prospering in part because its users are apparently permitted by the Twitter management to “hijack” trademarked names of reputable companies, organizations and individuals and to use them as “their” Twitter names.

See

Twitter and Trademark Infringement : LawPundit Trademark Stolen at Twitter : LawPundit Responds by Registering Name EvanEvWilliams : Tit for Tat

The Trademarked LawPundit Name has been Stolen at Twitter which is Criminally Abetting Identity Theft : Here is our Complaint to Twitter

For All Golfers – THIS IS A TIP – NOT A PAID AD : The Easily Affordable Digital Pro High Speed Golf Swing Analysis System

This is not a paid ad and we do not generally post email that we get as advertising but we got this in the mail today from Digital Pro Golf and looked at the specs and video samples online.

What we liked was the ability to download the software and try it out for free, which we did, and we were able to use the program to evaluate an .avi file of our swing, showing that we drifted off substantially from our correct center on the backswing. This was already VERY USEFUL and will be something for us to work on at our next session on the driving range.

Hence, this looks like a potentially useful low cost video swing analysis system that may be of interest to some of our readers, but this is not a recommendation as such since we have no means of comparison to competing video systems.

Here is the content of the original email from Digital Pro Golf.

We’ve had many professional and amateur golfers asking
questions about our new high-speed $249 video recording and
swing analysis system. Your questions are answered here:

www.digitalprogolf.com/60fps.html

Digital Pro Golf offers professional and amateur golfers the most
affordable and easiest-to-use high-speed, portable swing recording
and swing analysis systems available in the marketplace today.
Features include:

* PC and Mac compatibility. Easily exchange files from one computer
to another, from pro to student, or just between friends. Simplicity,
ease of use, portability and low cost are our trademarks.

* Full systems, including the camera, software, tripod and memory,
start at less than $250 and are capable of recording from 30-1,000
frames per second.

* Optimized for use on the range AND on the course.

* Software free to try for 30 days.

Our sample video library is here:

http://www.digitalprogolf.com/samplevideos.html

Our web site is here:

http://www.digitalprogolf.com

Our Store is here (the link to the International Store can be found at
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http://www.shop.digitalprogolf.com

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http://www.digitalprogolf.com/testimonials.html

Video is key to a better game. No one makes it easier than Digital Pro Golf.

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Digital Pro Golf
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The Guitars Have It : Customers Have Power : Is YouTube replacing the U.S. Supreme Court as the Last Resort for Customer Complaints?

It happened on the way to Nebraska….

Power on this planet is sometimes misunderstood, especially in the legal field. The power of the U.S. Supreme Court, for example, is undisputed, but is generally visible only over longer periods of time and for a very small selection of legal issues and cases. The power of the Internet on the other hand is pervasive and nearly immediate.

At issue is the case of a guitar damaged by United Airlines, a legal liability incident about which a music video by Dave Carroll has brought the company to its veritable knees without a single lawyer having uttered a word….

It is a sign of the “legal” times which we first read via Business Opportunities at Small Business Trends, where Anita Campbell writes about the above video:

If nothing else, this video shows how YouTube is becoming the court of last resort, when it comes to customer complaints. The court of last resort used to be the Supreme Court. But heck, YouTube is easier to get into.

Customers have power. Ignore at your peril.

See the article
to find out what impact this video has had.

New Podcast Series by Chorey, Taylor & Feil — Common Legal Mistakes International Companies Make in Doing Business in the U.S. and How to Avoid Them

Via a posting at the German American ExecuNet group at Linkedin.com, attorney John Watkins of the law firm Chorey, Taylor & Feil in Atlanta (Buckhead), 3399 Peachtree Road, N.E., Suite 1700, The Lenox Building, Atlanta, Georgia 30326 alerts us to a podcast by John L. Watkins and Thomas L. McLain of Chorey, Taylor & Feil (“CTF”) on “How International Companies Can Avoid Key Legal Mistakes in Doing Business in the United States (Part II)“.

Watkins gives a short description of the podcast at the CTF law firm blog – and we reproduce the first paragraph of that posting below: (Friday, July 17, 2009, Part II of Podcast on Common Legal Mistakes Made by International Companies in Doing Business in the U.S. Now Available by John L. Watkins):

Part II of our podcast series on Common Legal Mistakes International Companies Make in Doing Business in the U.S. is now available. In this podcast, Tom McLain and I provide the general background regarding legal issues in the U.S. This discussion provides the foundation for more specific issues to be discussed in later episodes. Tom and I discuss the sources of law in the U.S. and the fifty states, and address some of the key legal differences that exist in most U.S. jurisdictions when compared to other countries.

Watkins closes by saying that:

Future podcasts will cover topics on doing business in the U.S. in greater detail.

You can subscribe to such future podcasts at the Chorey, Taylor & Feil website by clicking on the sideways “V”, i.e. the “two-pronged” “three knot” symbol at the bottom of the video screen
(” ’email or embed this video’ will appear as the pop-up message)

and then choose “Subscribe” from the three alternatives in the menu line at the bottom of the video (those three choices are Send to a Friend, Embed, or Subscribe).

If you choose “Subscribe”, you are again given three choices:
iTunes, Miro, or RSS.

You may not be familiar with the free and open source Miro HD Video Player, so you might want to check it out. As written at their website GetMiro:

Miro 2.0 Open-source, non-profit video player and podcast client.
Torrents made easy, RSS made beautiful, with tons of gorgeous HD video.

We note, by the way, as a matter of general human interest, and in case your international business takes you to Atlanta, that the law firm Chorey, Taylor & Feil is located in the Buckhead part of Atlanta about 8 miles north of downtown Atlanta and about 20 miles north of Hartsfield-Jackson Atlanta International Airport.

As written at Wikipedia:

Buckhead is an uptown district within the city of Atlanta, Georgia, United States. Comprising over 100,000 residents and approximately the northern one-fifth of the city, Buckhead is legally defined as that portion of the city of Atlanta northwest of Interstate 85 and northeast of Interstate 75.

It is sometimes promoted as the “Beverly Hills of the South” in reference to Beverly Hills, California, an area to which it is often compared.

The main north-south street is Peachtree Road, which extends south into the heart of the city as Peachtree Street. This name change is significant in that it defines a border between Buckhead and Midtown Atlanta. The main east-west street is West Paces Ferry Road, named for a former ferry across the Chattahoochee River. Hardy Pace, one of Atlanta’s founders, operated the ferry and owned much of what is now Buckhead, and as far west as Vinings. The area north of Buckhead, beyond the Atlanta city limit, is the city of Sandy Springs….

According to Forbes Magazine, Buckhead is home to the 9th wealthiest zip code in the nation (30327), with a household income in excess of $341,000 per year and is the location of the wealthiest of Atlanta’s neighborhoods. Home to the Governor Mansion, the area’s real estate market is also the most expensive in the state of Georgia with an average home value in 2005 of approximately $761,000…. Robb Report magazine has consistently ranked it one of the nation’s “10 Top Affluent Communities” for “some of the most beautiful mansions, best shopping and finest restaurants in the Southeastern United States”.

Buckhead features Bone’s Restaurant, ranked by some as the best steak restaurant in America, where we had the pleasure of dining last year (walk-ins are accepted but advance reservations are recommended). We agree that Bone’s is special. The atmosphere is cosy and comfortable (business casual dress), the food (steak, seafood, deserts) and drinks were simply fantastic and the service of the staff was exceptional. Bone’s is located just off of Peachtree Road at 3130 Piedmont Rd NE, Atlanta, GA‎ – Tel. (404) 237-2663‎.

The eminently affordable Wingate by Wyndham hotel in Buckhead (our photo)


offers free LONG limousine service to Bone’s (our photo):


International companies doing business in the U.S.A. are making no error visiting Buckhead. We found it to be a great place.

Twitter and Trademark Infringement : LawPundit Trademark Stolen at Twitter : LawPundit Responds by Registering Name EvanEvWilliams : Tit for Tat

We posted previously at LawPundit about the fact that the trademarked lawpundit name has been stolen at Twitter and that the management there is not responding to our complaints to have that name turned over to us – and this is part of established Twitter policy.

Blogger Erik J. Heels has written that of the top 100 global brands, 93% have had their Twitter usernames taken by somebody else (i.e. Twittersquatted).

Twitter is a company which is thus making a name for itself in part by profiting from the aiding and abetting of virtual criminal identity theft.

Greatly at fault for this practice at Twitter are legislators and judges, whose incompetent lawmaking and decisions in the intellectual property field have led to intolerable naming situations such as exist at Twitter and elsewhere on the Internet, where trademarked names are infringed with impunity.

It is unfortunately so on our planet that people are oblivious to reason or logic until they themselves are personally affected and so we have today successfully registered the name EvanEvWilliams at Twitter, being unable to properly register LawPundit there, since our trademarked lawpundit name has been stolen by an anonymous Twitter user who hides his postings from public scrutiny, a fact from which evil intent can be imputed.

Tit for tat.

There is of course no intent on our part to confuse or mislead anyone here since we are not anonymous and are from the very beginning accurately and honestly informing the world that EvanEvWilliams is the LawPundit Twitter name.

U.S. President Barack Obama on Supreme Court nominee Judge Sonia Sotomayor : Judge Sotomayor as a Former Summer Associate at Paul Weiss et al.

We subscribe to the email messages of U.S. President Barack Obama at the White House. President Obama’s most recent mailing concerns his nomination of Judge Sonia Sotomayor to the U.S. Supreme Court.

Judge Sotomayor was a summer associate in her younger days at the Law Pundit’s former law firm, Paul, Weiss et al. Needless to say, since hiring by Paul, Weiss is almost always indicative of superior talent, we are biased in favor of this nomination, even if we do not always agree with Judge Sotomayor’s judicial opinions.

Here is what President Obama writes in his email about Sotomayor:

Good Morning,

Yesterday, Judge Sonia Sotomayor made her opening statement to the Senate Judiciary Committee and moved another step closer to taking a seat on the United States Supreme Court. In case you missed it, watch the video of her opening statement here:

Judge Sotomayors Opening Statement

As President, there are few responsibilities more serious or consequential than the naming of a Supreme Court Justice, so I want to take this opportunity to tell you about the qualifications and character that informed my decision to nominate Judge Sotomayor.

Judge Sotomayor’s brilliant legal mind is complemented by the practical lessons that can only be learned by applying the law to real world situations.

In the coming days, the hearings will cover an incredible body of work from a judge who has more experience on the federal bench than any incoming Supreme Court Justice in the last 100 years. Judge Sotomayor’s professional background spans our judicial system — from her time as a big-city prosecutor and a corporate litigator, to her work as a federal trial judge on the U.S. District Court, and an appellate judge on the Second Circuit Court of Appeals.

And then there is Judge Sotomayor’s incredible personal story. She grew up in a housing project in the South Bronx — her parents coming to New York from Puerto Rico during the Second World War. At the age of nine, she lost her father, and her mother worked six days a week just to put food on the table. It takes a certain resilience and determination to rise up out of such circumstances, focus, work hard and achieve the American dream.

This character shined through in yesterday’s opening statement: Watch the video.

In Judge Sotomayor, our nation will have a Justice who will never forget her humble beginnings, will always apply the rule of law, and will be a protector of the Constitution that made her American dream and the dreams of millions of others possible. As she said so clearly yesterday, Judge Sotomayor’s decisions on the bench “have been made not to serve the interests of any one litigant, but always to serve the larger interest of impartial justice.”

In anticipation of today’s first round of questioning, I hope you’ll share this email widely, because Judge Sotomayor’s confirmation is something that affects every American. It’s important for these hearings to be about Judge Sotomayor’s own record and her capacity for the job — not any political back and forth that some in Washington may use to distract you. What members of the Judiciary Committee, and the American people, will see today is a sharp and fearless jurist who does not let powerful interests bully her into breaking from the rule of law.

Thank you,
Barack Obama

Contact the White House
The White House · 1600 Pennsylvania Ave NW · Washington, DC 20500 · 202-456-1111

The Top 10 Most Frequently Accessed United States Supreme Court Decisions at LexisNexis : Significance and Case Commentaries

What United States Supreme Court decisions actually get the most action in legal circles?

TechnoLawyer in its July 1, 2009 TechnoRelease® features the LexisNexis top 10 most frequently accessed United States Supreme Court decisions.

The case citations below are from LexisOne, but the commentary is by LawPundit, linking to selected other websites which discuss these cases. (The full text of US Supreme Court decisions from the year 1781 to the present – are freely accessible at LexisOne, but registration (free) is required.)

The Top 10 cases at LexisNexis are:

1. Terry v. Ohio (freedom from unlawful searches and seizures: the police right to frisk without a warrant was affirmed)
392 U.S. 1; 88 S. Ct. 1868; 20 L. Ed. 2d 889; 1968 U.S. LEXIS 1345; 1968 U.S. LEXIS 1345; 44 Ohio Op. 2d 383
(see LexisOne, or e.g. Cornell U)

As written about Terry v. Ohio at jrank.org:

Terry v. Ohio expanded the right of police officers to “stop and frisk” individuals whom they deem to be suspicious….

By an 8-1 vote, the Supreme Court upheld the validity of the stop and frisk practice….

[T]he “Terry type search” became the standard by which police officers could measure the lawfulness of searches performed without obtaining a warrant.

2. Tinker et al. v. Des Moines Independent Community School District et al. (freedom of speech: the right of students to wear peace sign armbands in school was affirmed)
393 U.S. 503; 89 S. Ct. 733; 21 L. Ed. 2d 731; 1969 U.S. LEXIS 2443; 49 Ohio Op. 2d 222
(see LexisOne, or e.g. FindLaw)

The ACLU writes:

On February 24, 1969 the Court ruled 7-2 that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

The Court ruled that the First Amendment applied to public schools, and school officials could not censor student speech unless it disrupted the educational process. Because wearing a black armband was not disruptive, the Court held that the First Amendment protected the right of students to wear one.

3. Bell Atl. Corp. v. Twombly (parallel conduct: without further evidence of agreement, the mere fact of parallel conduct does not constitute a conspiracy under the Section 1 antitrust provision of the Sherman Act)
550 U.S. 544; 127 S. Ct. 1955; 167 L. Ed. 2d 929; 2007 U.S. LEXIS 5901; 75 U.S.L.W. 4337; 2007-1 Trade Cas. (CCH) P75,709; 68 Fed. R. Serv. 3d (Callaghan) 661; 20 Fla. L. Weekly Fed. S 267; 41 Comm. Reg. (P & F) 567
(see LexisOne, or e.g Supreme Court of the United States (.pdf))

Scott Dodson at the Virginia Law Review writes in Pleading Standards After Bell Atlantic Corp. v. Twombly:

To state a Section 1 claim … the plaintiff must allege facts “plausibly” suggesting the existence of a conspiracy. This “plausibility” standard, while not a “probability” standard, requires “enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement….

The Court … explained that Conley v. Gibson’s requirement that the complaint “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests” is critical. “[G]rounds,” the Court wrote, “requires more than labels and conclusions, and a formulaic recitation of the elements of a case of action will not do.” In short, some factual allegations must accompany the elements of a claim.

4. Deborah Morse v. Joseph Frederick (freedom of speech: student speech or action that intrudes upon the work of the schools can be limited by school authorities without violating the free speech rights of students)
551 U.S. 393; 127 S. Ct. 2618; 168 L. Ed. 2d 290; 2007 U.S. LEXIS 8514; 75 U.S.L.W. 4487; 20 Fla. L. Weekly Fed. S 431
(see LexisOne, or e.g. SCOTUS blog)

C. Paul Smith writes at his blog:

[T]he Supreme Court ruled in Morse v. Frederick … that Deborah Morse, a high school principal in Alaska, did not violate the free speech rights of one of her students, Joseph Frederick, when she confiscated a 14-foot banner that Frederick displayed at a school event, which banner bore the phrase, “BONG HiTS 4 JESUS,” and when she suspended Frederick for not complying with her directive to take the banner down….

The guiding case with respect to this school speech issue is Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969). In that case the Supreme Court allowed students to wear black arm bands in protest of the Vietnam War. The Court ruled that unless the speech [the wearing of the armbands] would “materially and substantially disrupt the work and discipline of the school,” then the conduct was protected under the First Amendment. In that case the students’ conduct prevailed over the school administrators. But in the case of the “BONG HiTS 4 JESUS” banner, the principal said that the banner was taken down because she thought that it promoted illegal drug use. The student denied that this was his intent, and a close analysis of the wording yields uncertainty about what the phrase means. But the majority of the Supreme Court held (and correctly, in my opinion) that the principal’s “on the spot” action to confiscate the banner was a “reasonable” action for her to take in controlling student expressions that could contribute to dangerous conduct.

Please note, by the way, as can be read at Wikipedia, that “A bong, also commonly known as a water pipe, is a smoking device, generally used to smoke cannabis, tobacco, or other substances“, and that a “bong hit” according to the Urban Dictionary means “to enhale smoke from a bong“.

I have more than a cursory interest in this subject, having edited John Kaplan’s pioneer book: Marijuana: The New Prohibition.

5. Gonzales v. Raich (Commerce Clause, powers of Congress and the federal government: federal U.S. authority permits prohibition of state-allowed local cultivation of marijuana)
545 U.S. 1; 125 S. Ct. 2195; 162 L. Ed. 2d 1; 2005 U.S. LEXIS 4656; 73 U.S.L.W. 4407; 18 Fla. L. Weekly Fed. S 327
(see LexisOne, or e.g. Justia.com)

Donald C. Arnold, Chief Counsel of the General Counsel Division of the Attorney General’s office in the Department of Justice of the State of Oregon, wrote as follows about Gonzales v. Raich:

1. Does Gonzales v. Raich, 545 U.S. ___ (2005), 125 S. Ct. 2195, Slip Op. 03-1454, invalidate the Oregon statutes authorizing the operation of the Oregon Medical Marijuana Program?

No. Raich addresses a narrow constitutional question concerning the power of the federal government to regulate intrastate activity under the Commerce Clause. It does not invalidate the Oregon Medical Marijuana Act (Act), ORS 475.300 to 475.346.

Raich holds that Congress has the authority to prohibit the wholly local cultivation of marijuana even if it is used for medicinal purposes pursuant to California law. Precipitating the lawsuit, federal law enforcement officials in California had seized and destroyed an individual’s cannabis plants, after county officials had concluded that her cultivation of the plants and use of marijuana was lawful under California’s medical marijuana law. The plaintiffs in Raich sued to have enforcement of the Controlled Substances Act (CSA), 21 USC § 801 et.seq., the law under which the federal officials had acted, declared unconstitutional when applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law. Raich, slip op at 12. Because the CSA classifies marijuana as a Schedule 1 controlled substance, with no “currently accepted medical use,” its manufacture, distribution or possession is a federal crime. Id. at 11.

The Court concluded that the CSA, as applied to the circumstances of the case, is a valid exercise of Congress’ power under the Commerce Clause because Congress had a rational basis upon which to conclude that production of marijuana for local, personal consumption “has a substantial effect on supply and demand in the national market.” Raich, slip op at 16, 19. According to the Court’s analysis, there being a number of states authorizing the medical use of marijuana only strengthens its conclusions as to congressional power: “Congress could have rationally concluded that the aggregate impact on the national market of all the transactions exempted from federal supervision is unquestionably substantial.” Id. at 30.

However, Raich does not hold that state laws regulating medical marijuana are invalid nor does it require states to repeal existing medical marijuana laws. Additionally, the case does not oblige states to enforce federal laws. Because these issues of the relationship between federal and state authority were not relevant to the case, they are not addressed in the Court’s opinion.

6. Campbell v. Acuff-Rose Music (Freedom of Speech and Copyrights: Fair Use, Commercial Use, Transformative Use, Parody – a transformative commercial parody – not just a take-off – of a copyright-protected work “could” be permissible as fair use)
510 U.S. 569; 114 S. Ct. 1164; 127 L. Ed. 2d 500; 1994 U.S. LEXIS 2052; 62 U.S.L.W. 4169; 29 U.S.P.Q.2D (BNA) 1961; Copy. L. Rep. (CCH) P27,222; 22 Media L. Rep. 1353; 94 Cal. Daily Op. Service 1662; 94 Daily Journal DAR 2958; 7 Fla. L. Weekly Fed. S 800
(see LexisOne, or e.g. UCLA Law & Columbia Law School)

As written at the National Coalition Against Censorship (NCAC):

Twenty-five years after the release of Roy Orbisonís song, “Oh Pretty Woman”, 2 Live Crew wrote a vulgar parody satirizing the famous rock ballad. Acuff-Rose Music, Inc., the owner of the copyright for the song, brought an action against Luther Campbell, the leader of the band 2 Live Crew, for copyright infringement. At issue in this case was the scope of the fair use provision of the Federal Copyright Act, which specifically permits unauthorized use of a work to criticize and comment upon the work. Ultimately, the Supreme Court examined whether 2 Live Crew’s commercial parody was indeed a fair use of the original song within the meaning of the Federal Copyright Act.

Xyno.de, “the unofficial homepage” of “The 2 Live Crew” writes:

Campbell v. Acuff-Rose Music, Inc. is probably the seminal case for the modern application of the fair use doctrine. After years of neglect languishing in the back waters of intellectual property, the fair use doctrine received the spotlight from the Supreme Court in 1994. The lightning rod was 2 Live Crew (no stranger to Constitutional controversy) and their allegedly parodic use of the “Pretty Woman” song….

7. Roe v. Wade (Abortion and the Constitution: Abortion is a Constitutional right, derived from the right of privacy)
410 U.S. 113; 93 S. Ct. 705; 35 L. Ed. 2d 147; 1973 U.S. LEXIS 159
rehearing denied, 410 U.S. 959, 35 L. Ed. 2d 694, 93 S. Ct. 1409, 1973 U.S. LEXIS 3282
(see e.g. Wikipedia)

According to the Roe decision, there is a constitutional right to privacy, guaranteed by the Due Process Clause of the Fourteenth Amendment, which disallowed most existing state and federal restrictions on abortion in the United States. Roe v. Wade is one of the most controversial and politically significant cases in U.S. Supreme Court history.”

As written at the website of the ACLU:

[T]he landmark abortion rights case, Roe v. Wade … challenged a Texas law prohibiting all but lifesaving abortions. The Supreme Court invalidated the law on the ground that the constitutional right to privacy encompasses a woman’s decision whether or not to terminate her pregnancy. Characterizing this right as “fundamental” to a woman’s “life and future,” the Court held that the state could not interfere with the abortion decision unless it had a compelling reason for regulation. A compelling interest in protecting the potential life of the fetus could be asserted only once it became “viable” (usually at the beginning of the last trimester of pregnancy), and even then a woman had to have access to an abortion if it were necessary to preserve her life or health.

8. Celotex Corp. v. Catrett (Federal litigation: Summary judgment and evidentiary support for claims : Plaintiff has the burden of showing it has sufficient evidence to proceed with the case)
477 U.S. 317; 106 S. Ct. 2548; 91 L. Ed. 2d 265; 1986 U.S. LEXIS 118; 54 U.S.L.W. 4775; 4 Fed. R. Serv. 3d (Callaghan) 1024

Adam Steinman of the University of Cincinnati College of Law, in The Irrepressible Myth of Celotex: Reconsidering Summary Judgment Burdens Twenty Years after the Trilogy, Washington & Lee Law Review, Vol. 63, 2006, U of Cincinnati Public Law Research Paper No. 05-16, available at SSRN, writes in the Abstract of that article:

Twenty years ago, the Supreme Court decided a trilogy of cases on summary judgment. These cases have had a profound impact on federal litigation. Empirical data presented in this article demonstrate that federal courts have cited these three cases more than any Supreme Court decisions in history. Celotex Corp. v. Catrett is widely recognized as the most significant decision of the trilogy, both because it expanded the availability of summary judgment and because it remains the Court’s most current instruction on how burdens are allocated between the party seeking and the party opposing judgment.”

The Celotex trilogy of cases regarding the standard to be applied for summary judgment is nicely described by the High Court of American Samoa Trial Division :

This standard has been articulated by the Supreme Court in what is commonly referred to as the Celotex trilogy. These cases stand for the proposition that an inadequate showing cannot defeat a moving party’s competent motion for summary judgment. In Celotex Corp. v. Catrett … the court stated ” …the burden on the moving party may be discharged by. .. pointing out. ..that there is an absence of evidence to support the nonmoving party’s case.” In Anderson v. Liberty Lobby, 91 L.Ed.2d 202, 212 (1986) (public figure libel action), the court defined a genuine issue of dispute as one in which ” …a reasonable jury could return a verdict for the nonmoving party. ” The court elaborated: ” As [cited cases] indicate, there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is not significantly probative, summary judgment may be granted….” And in Matsushita Elec. Ind. v. Zenith Radio, 89 L.Ed.2d 538, 552 (1986) (antitrust conspiracy case), the court stated: “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial’….” [emphasis added]

Since the Celotex trilogy, the above standard has been used throughout the federal system.

9. Anderson v. Liberty Lobby, Inc. (see the Celotex trilogy above)
477 U.S. 242; 106 S. Ct. 2505; 91 L. Ed. 2d 202; 1986 U.S. LEXIS 115; 54 U.S.L.W. 4755; 4 Fed. R. Serv. 3d (Callaghan) 1041; 12 Media L. Rep. 2297
(see LexisOne, or e.g. OpenJurist.org)

10. Burlington Industries v. Ellerth (Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq: question of vicarious employer liability for sexual harassment of employee by supervisor)
524 U.S. 742; 118 S. Ct. 2257; 141 L. Ed. 2d 633; 1998 U.S. LEXIS 4217; 66 U.S.L.W. 4634; 77 Fair Empl. Prac. Cas. (BNA) 1; 73 Empl. Prac. Dec. (CCH) P45,340; 98 Cal. Daily Op. Service 5029; 98 Daily Journal DAR 6991; 1998 Colo. J. C.A.R. 3405; 11 Fla. L. Weekly Fed. S 692
(see LexisOne, or e.g. FindLaw)

The Corporate Compliance Prof Blog first of all quotes the decision in Ellerth:

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee….

When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence…. The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

and then writes:

So, here is a quick summary of employer vicarious liability under Ellerth:

  • The plaintiff carries her burden by proving that a supervisor committed hostile environment sexual harassment.
  • If the employee proves that she suffered a tangible employment action, the employer is vicariously liable.
  • If the employee did not suffer a tangible employment action, the employer may avoid vicarious liability by pleading and proving the two element affirmative defense.

Read the full posting Case Analysis — Sexual Harassment — Ellerth and Faragher Affirmative Defense at Corporate Compliance Prof blog.

See the full Top 10 list at LexisNexis.

Genetic Patent Battle in the Biotech Sector Intensifies : The ABA Law Journal Magazine Features Law and Technology in "Wrangling Genes"

Brendan L. Smith at the ABA Journal online Law News Now in the section on Science & Technology Law has a posting titled Law Trails Behind as Disputes Over Genetic Patents Intensify.

Read his full feature article in the ABA Journal magazine July 2009 issue at Wrangling Genes: As the law changes and new medical frontiers open, the dispute over genetic patents intensifies.

Interesting in this connection is the following observation from Patent Baristas:

Gene Patent Fearmongering

The Slate ran an article about the evils of patent human genes. “Patents are meant to protect inventions, not things that exist in nature like genes in the human body,” quoting Christopher Hansen, an attorney for the American Civil Liberties Union in regards to their lawsuit to have gene patents declared unconstitutional. The Patent Office estimated that about 52,800 patents have been granted related to genes, fragments of genes, genetic processes and bits of DNA as small as a single letter change in the genetic code.

Recall that LawPundit has posted previously and quite definitely about the bad judgement involved in permitting the biotech patenting of human genes:

In re Kubin : Hitting the NAIL on the Head : Sequencing Poor Federal Circuit Court Decisions out of the Biotechnology Patent Genome via KSR and/or Bilski Reasoning

Federal Circuit affirms In re Kubin and puts sensible limits on Biotechnology Patents pursuant to the KSR obviousness standard, thus negating Deuel (and see the spirited comments and answers thereto at LawPundit II)

Patent Baristas Comments Extensively on In Re Kubin : The Use of Conventional Techniques to Arrive at an Obvious Result Does Not Make an Invention

Andis Kaulins from the USA in Germany (LawPundit) is no near relation to Andis Kaulins from Canada in Wuxi China or to Andis Kaulins in Talsi Latvia

Most people think because of the rarity of the name Andis Kaulins that there can be only one person on Earth with that name – and this mistaken assumption has already led several times online to very unfortunate cases of mistaken identity and other difficulties.

In fact, there are at least THREE verified Andis Kaulins out there on Planet Earth, and there may be more. The problem is exacerbated since Andis Kaulins is a Latvian origin name and Latvians often do not have middle names, which can make differentiation more difficult.

Andis Kaulins – the LawPundit – grew up in the USA, went to Stanford Law School, was an associate with Paul Weiss et al. in New York City and is now domiciled in Germany, co-authoring an English-German business, commerce and finance dictionary for Langenscheidt and doing freelance legal work, e.g., for the European Commission. Last year this Andis Kaulins won the men’s championship at his golf club at age 61. He is also the author of the book Stars Stones and Scholars. That is me – the writer of this LawPundit blog.

There is also a different Andis Kaulins in Wuxi, China who teaches English there and labels his MySpace website Andis Kaulins in China. He hails from Canada and is no near relation of mine, though it is likely that we are somehow related back in distant time, as I presume that the few Kaulins clans in Latvia are related genetically. To my knowledge, I have never met this Andis Kaulins.

There is also an Andis Kaulins with a phone number in Talsi, Latvia, who appears from the little online information available to me to still be a recruit at a police academy. He is no near relation of mine, though it is likely through the surname Kaulins that we are somehow related back in distant time. I have never met this Andis Kaulins.

See my genealogical postings about the surname Kaulins at the Kaulins blog.