May It Please The Court
Quote of the Day - Democracy is the art of running the circus from the monkey cage.
The Circus Otherwise Known as LitigationCalifornia has the 5th or 6th largest economy in the world. That's saying a lot, given that we're bigger than France, Italy and China.
Well, Canada, too, but that's not saying a lot.
Heck, we exported over $27 billion in goods in 2002, and more last year.
But, we may be about to export an unlikely service: litigation.
Earlier this week, the California Supremes voted unanimously to hear the case of Snowney v. Harrah's Entertainment. In doing so, the Supremes rejected 1981's Circus Circus Hotels Inc. v. Superior Court, 120 Cal.App.3d 546, in which the 4th District ruled that advertising and toll-free numbers do not confer personal jurisdiction allowing suits in California. The justices called the 23-year-old ruling a "narrow interpretation" that was "unwarranted."
That's right, the seven-ring circus of justices are going to determine whether Harrah's and other hotels such as Circus Circus in Nevada can be pulled over the border to the circus otherwise known as California.
OK, maybe too much clowning around in that last paragraph, but it sounded good. Or maybe you'll like this sound better.
Harrah's advertised over here in California via the web. Well, who doesn't? Reading through the appellate court opinion gives us little clue over the basis for the claim other than unfair competition and false advertising to "high end" customers. Seems that Snowney sued seeking class action status on behalf of all California residents hit with a $3-per-night energy surcharge while staying in Las Vegas, Reno or other gambling towns. He says we were enticed by advertising both on the web and billboards.
A three-dollar charge because we saw ads on billboards? Doesn't sound to high-end to me.
A companion case involving telemarketers is something of the same thing about jurisdiction over a Nebraska telemarketer.
Neither Harrah's nor the Nebraska telemarketer believe they should be here in California answering to California courts. There are many Californians who think the same thing, but the Supremes are about to decide whether the long arm of the law can stretch to other states based solely on advertising in California.
Interesting to lawyers (see it in color), but how does this affect you? Well, if you're out of state, it might if you advertise here, or if you advertise in other states, you can expect the same treatment there.
Long story short? I don't know. Stop advertising. Be ready to get sued. I'm guessing we're going to have litigation as a new export.
Maybe we can ship some lawyers out, too. Now there's an idea.
Farming Kentucky Bluegrass in Idaho, Not IowaFirst, you're going to have to get over the fact that Kentucky bluegrass is grown outside of Kentucky. Actually, it's grown in Idaho, by farmers.
Let me say that again: Idaho, not only in Kentucky. In fact, Kentucky Bluegrass is really from Europe, Asia, and specifically Algeria and Morocco.
Sacrilege, you say? I just report 'em, I don't make this stuff up. Check out the links.
Ok, with that warning aside, you're ready for the rest of the story.
Seems that an environmental organization, Safe Air For Everyone, was unhappy with the Idaho farmers' practice of burning straw in the fields that is leftover from bluegrass seed harvesting.
So, like all red-blooded Americans, they sued.
But, they sued under RCRA, the Solid Waste Disposal Act, claiming that the bluegrass residue (aka straw) was a solid waste, and had to be disposed of properly, and not burned.
Seems the Ninth Circuit didn't agree. They think grass is, well, grass. Not waste.
In the lawsuit, the farmers argued that they reuse the straw, returning nutrients to the soil, that allows them to grow more and better bluegrass in the future. That was the argument that the Ninth Circuit bought. They disagreed that the straw was actually waste, subject to regulation under our environmental laws.
I lived on a farm in Iowa (not, not Idaho, Iowa). The farmers' argument was the same pitch I heard there in Hudson. Except the farmers there didn't burn straw, they gathered it into hay bales and sold it. To livestock farmers.
But not in Kentucky, of course.
The Old Man Lectures on CampfiresYep, I'm a Boy Scout. Actually, an Eagle Scout, Order of the Arrow and God & Country award holder. A regular Dudley Do-right.
That's why I was surprised by this article, where the federal government is seeking $14 million for a fire caused by unsupervised Boy Scouts, left alone overnight. They started fires to keep warm (go figure), but the fires smoldered after they left and caused a fire that burned 14,000 acres in rural Utah.
That's not how we did it. We were taught to douse campfires with water.
They must be teaching it differently now. Maybe it's the new math.
Not Surprisingly, You Get What You Ask ForISPs are not directly liable for copyright infringement by users who posted copyrighted photographs. So says the Fourth Circuit Court of Appeals in a recent holding.
Wouldn't have been how I presented the case, but the ruling makes sense. If the copyright holder really wanted to win the case, he might want to have presented the case on contributory infringement, which I've written about before, a la Napster, and the precedent for Napster.
Here's the case opinion if you want to read it.
Just goes to show you, you get what you ask for. Just don't ask for the wrong thing. You're likely to get the wrong answer.
Seize Goods At the Border Without LitigationStop 'em at the border. Yep, you can use the newly named U.S. Customs and Border Protection Agency to stop the importation of goods that violate your trademark or copyright.
Without filing a lawsuit. You first must file your trademark or copyright with the USCBPA and get it recorded. Get started here, or contact your local, favorite attorney.
Stops 'em cold at the border, before the goods even hit the market, and before you have to file suit. Of course there are some exceptions. You must be a U.S. citizen or legal entity to enjoy the protections (an exception that doesn't apply to copyrights). You also can't have registered your trademark abroad. There are a few others, too, so be aware. But Customs claims they aggressively protect your rights, and offer online trademark applications and copyright applications.
Customs - not a judge- decides whether goods infringe. The offending importer can appeal an adverse Customs decision, but the goods remain impounded during the appeal, and the decision to impound comes quickly when compared to litigation. Here are the rules and regulations to follow.
But don't just file and record your trademarks and copyrights. You have to take an active role with Customs and provide information in order to exercise your rights. They won't do all the work for you.
It's a lot less expensive than litigation, and a lot quicker. Go get 'em.
The Force of Fifth Estate Blogs and BlawgsBlogging has become the leading edge of the Fifth Estate. The first three belong to the government branches, legislative, legal and executive. The print, radio and television media lay claim to the Fourth Estate, and perhaps rightly so.
The Fifth Estate, however, is the root of the first four, and largely populous. It is us - you and me, and perhaps as large as the internet itself. Some would say the internet is the Fifth Estate, with instant messaging, e-mail, VIOP, video e-mail, webcasting and the like powering it. It is the most basic form of communication - person to person - on an extremely large scale.
Unlike the Fourth Estate, it is not filtered or edited for the masses. It is the masses.
So, how does blogging lay claim to the Fifth Estate? Well, as part of the whole. Take a look at Time magazine, and its recent article, Meet Joe Blog. Even the Fourth Estate has had to join in - now we have ones from the Gray Lady and Washington Monthly. The import is clear.
Blogs and even the most popular blawgs, of which this site is one, thank you very much, are a force.
Now, will they have the staying power of the Fourth Estate? Time will tell.
Taking From the Prosecutor - Not a Good IdeaI shred. In my son's lingo, that might mean that I was a snowboarder, but I'm not. I shred my personal information instead of throwing it into the trash.
Unfortunately, a Houston prosecutor apparently didn't. His identity got stolen. A woman with a history of fraud got the bank account number of Houston's chief prosecutor, and is now accused of writing hot checks.
Whoops. Picked the wrong guy.
Harris County District Attorney Chuck Rosenthal (second one down) has been busy straightening things out. It got so bad he had to withdraw money from one of his children's accounts.
30-year old Sharon Durbin was indicted this week on a felony charge of using a fake check. Rosenthal recused himself from the case and state District Judge Carol Davies appointed a special prosecutor. Actually, she passed 21 fake checks totaling more than $9,000 to purchase computers, groceries and gift certificates at a Petsmart store.
Watch yourself out there.
Prop 65 Suit Stopped Cold For Procedure ViolationLawyers tend to get excited about small details in their practice area. This is one of those. You may be familiar with Proposition 65. It's that proposition-now-statute that requires those signs on buildings and other locations in California where cancer-causing and reproductive-harming chemicals may reside.
Oh. You ignore the signs? So do the rest of us, I guess. I have yet to run into anyone who refuses to go into a building because of the sign or chemicals. They're everywhere.
Anyway, back to the point. In an opinion out of our First Appellate District, comes this: Plaintiffs who sue under Prop 65 must file a certificate of merit before filing suit. (See California Health & Safety Code section 25249.7(d)(1), about one screen down).
Seems like Mr. DiPirro (our erstwhile plaintiff in the opinion above) didn't do that. He filed the Certificate after filing suit.
The Court said no go, and stopped the lawsuit from moving forward. It recognized that the legislature passed the additional requirement in order to stop frivolous lawsuits.
Chalk one up for business.