May It Please The Court
Quote of the Day - The dog has seldom been successful in pulling man up to its level of sagacity, but man has frequently dragged the dog down to his.
When You Define 'Livestock,' Would You Include Dogs?
Let's take a trip for a moment to the mountains of Idaho, and go back in time nearly 30 years. In 1973, Earl and Iona Monroe, owners of a plot of land along the Middle Fork of the Clearwater River in Idaho, including a twoacre tract, granted the United States a scenic easement under the Wild and Scenic Rivers Act, 16 U.S.C. sections1271-1287.
The purpose of the easement is to allow the U.S. Forest Service "to administer such land to protect the scenic, recreational, geologic, fish and wildlife, historic, cultural, and other similar values [of the region] and to prevent any developments that will tend to mar or detract from their scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values . . . ."
Then, in 1989, Ron and Mary Park purchased the tract of land. At the time there was a chicken coop there. The Parks requested and the Forest Service approved modifications to some of the existing buildings and also approved the addition of horse stalls. In 1990, the Parks received approval to use a portion of their home as a craft and hobby shop. A year later, the Parks received approval to run a bed and breakfast from their home. In 1997, they began advertising that they were offering a dog training and kennel business, Wild River Kennels, on the property.
That's when the Forest Service got fed up and put their foot down, so to say. They told the Parks to remove the kennels, and when they didn't, the Forest Service sued in the case of US v. Park. In their defense, the Parks argued that the "senic easement" allowed livestock, and dogs were livestock. So you're not missing any information, the easement reads, in part:
The Parks "retain the right to use the easement for general crop and livestock farming and for limited residential development consistent with applicable State and local regulations..."
There you have it.
Not so fast, you say. Maybe cattle, horses, pigs and perhaps goats are livestock, but dogs? That's the Court's initial reaction: "Despite a gut inclination that the answer might be "no," resolution of the issue is not so clear, thus precluding summary judgment at this stage of the proceeding. As it turns out, the term 'livestock; is ambiguous at best and much broader than the traditional categories of horses, cattle, sheep, and pigs."
In fact, we get quite a lesson in the definition of livestock. The Court observes, "The term "livestock" stems from the Middle Ages, when it was used as a measure of wealth or to refer to property that could be moved, particularly to a market for trade. Online Etymology Dictionary, http://www.etymonline.com (last visited July 25, 2008). Later, the term began to be used in a more limited sense to describe cattle. Id. Today, the dictionary definition of 'livestock' is sweeping, capturing every type of domesticated animal. For example, Merriam Webster's Collegiate Dictionary defines 'livestock' as 'animals kept or raised for use or pleasure; esp: farm animals kept for use and profit.' MERRIAMWEBSTER COLLEGIATE DICTIONARY 728 (11th ed. 2003). The Oxford English Dictionary is in accord and defines "livestock" as 'animals, esp. on a farm, regarded as an asset.' THE CONCISE OXFORD DICTIONARY OF CURRENT ENGLISH 797 (9th ed. 1995).5 Even Black's Law Dictionary defines 'livestock' broadly as 'domestic animals and fowls that (1) are kept for profit or pleasure, (2) can normally be confined within boundaries without seriously impairing their utility, and (3) do not normally intrude on others' land in such a way as to harm the land or growing crops.' BLACK'S LAW DICTIONARY 953 (8th ed. 2004); see also Levine v. Conner, 540 F. Supp. 2d 1113, 1116 (N.D. Cal. 2008) (analyzing the dictionary definitions of the word 'livestock' and observing that 'the scope of domestic animals used or raised on a farm can potentially extend to guinea pigs, cats, dogs, fish, ants, and bees.').
"Despite the broad definitions in the dictionaries, we recognize that 'livestock' has been used to describe a more limited set of animals such as cattle, horses, and pigs. The government calls our attention to § 25-1101 of the Idaho Code, which limits "livestock" to a narrow set of animals, namely, 'cattle, horses, mules, or asses.' Idaho Code § 25. That section, however, pertains to brands and identifications affixed to the hide of an animal. Not surprisingly, this provision is not the only one in the Idaho Code that defines 'livestock:' § 25-3601 states that cassowary, ostrich, emu, and rhea are 'livestock' and § 25-3701 adds fallow deer, elk, and reindeer to the list. Idaho Code §§ 25-3601, 25-3701."
Wow. That's a fairly comprehensive list of livestock, but none of the definitions offered by the Court include dogs.
The lower court held that the Parks' dog kennel business was a prohibited commercial activity. The Ninth Circuit observed further that "[a]lthough the Parks are running the kennel for profit, this fact does not preclude the operation from also being a permissible livestock farming use. Farming surely can be undertaken for profit and the easement expressly states that the grantors, now the Parks, 'retain the right' to engage in 'general crop and livestock farming.' This right was retained without exception. The only consistent way to understand the restriction is as prohibiting commercial activity except to the extent that it qualifies as 'general crop and livestock farming.'"
I've been around farming for a bit, and I wasn't aware that there was much about it that was profitable. I've also seen lots of dogs on farms, and some fairly helpful dogs at that. Some dogs have rescued farmers from falls under tractors and some even herd sheep and other animals. As a former gentleman farmer and now a lawyer, I'd have to agree that dogs can be livestock.
Besides, if the Parks can operate a bed and breakfast out of their home, why can't they have dog kennels?
No Honor Among Thieves: Black Hat Conference Press Room Hack
To be completely accurate, the Black Hat Conference is a place where corporate security professionals and hackers meet up in a moment of hopeful Utopian neutrality, but it appears all was not in order at its most recent conference in Las Vegas. According to The Associated Press, three French journalists from the Global Security magazine allegedly hacked into a supposedly off-limits private secure network server for the conference's press room.
Hackers hacking? Who woulda thunk it?
Seeking to embarrass tech reporters who failed to login securely to the network, the journalists supposedly captured the login credentials from two other journalists from eWeek and CNET News. They then allegedly sought to post them on the infamous Wall of Sheep (aka "shame"), a "forum to embarrass security professionals who don't follow proper security procedures themselves," according to the AP. Once your name is listed, apparently, other security professionals know you just don't have the chops to avoid a hack and protect your company's network.
But their plan, if you can call it that, backfired.
Not only did the journalists' credentials get revoked and they found themselves ousted from the Black Hat conference, but also it appears Global Security's sponsorship of the conference is over, even though the magazine's logo still appears on Black Hat's sponsorship page. Organizers of the conference terminated their relationship with the magazine.
To top it off, the three journalists are infighting, with two claiming no knowledge of the hack and instead blaming a third. Marc Brami, director of the magazine's parent company, told the AP that fellow journalist Mauro Israel was responsible for the hack and that he and Dominique Jouniot didn't know about it. "I can't explain why he'd [Israel] do that," Brami said to Associated Press Technology Reporter Jordan Robertson. "He thinks it's some kind of game for him. I'm very angry with him. I've had a partnership with Black Hat for three years."
Then, at DEFCON 16, the hackers-only sister conference to Black Hat, the alleged hackers/journalists called a press conference, but then no-showed and failed to explain the situation from their perspective. An InformationWeek blogger, George Hulme, sees no shame in their hack, but conference organizers are none too happy. EFF lawyer Kurt Opshal is advising conference organizers whether they can pursue a civil action or criminal charges against the three journalists.
It's an interesting view of Karma.
Postscript: Opshal's had a busy couple of weeks. Massachusetts federal District Court Judge Douglas Woodlock issued an injunction to halt a DEFCON presentation on how to hack into that state's subway smart cards, called the Fare Media System. Opshal disagreed and asserted that the temporary restraining order is "violating their First Amendment rights." I don't know about that. Last time I checked, the First Amendment protection afforded by the Bill of Rights to the Constitution doesn't protect speech instructing others how to commit a crime.
Noncompetition Agreements Struck Down By California Supreme Court
The California Supreme Court yesterday settled a dispute between federal courts in California and our state courts on noncompetition agreements. In Edwards v. Arthur Anderson. The Supremes ruled first the noncompetition agreements are against public policy and therefore illegal. Second they decided releases in employment agreements can release "any and all" claims without improperly including claims that can't be released due to public policy prohibitions.
Federal courts previously upheld agreements that prevented an employee from going to work for a competitor, I think largely because most other states likewise uphold them. State courts, however, have been following the rule since 1872 when the California legislature wrote the law banning them.
The second portion of the ruling is of more interest to lawyers, perhaps. We're the ones who write the releases or advise clients to sign them. The issue revolves around whether the words "any and all" mean that the release includes claims that are illegal to release, such as noncompetition agreements. There's a tenet of the law that prefers to uphold agreements rather than void them.
So, to uphold the validity of the agreement, the court determined that the better course would be to rule the "any and all" didn't include claims that were illegal, so the court determined that the illegal claims weren't included in the release.
See why only lawyers would be interested in the second issue? But, employers are the ones interested in the noncompetition agreement. Luckily, employers can still rely on trade secret and nondisclosure agreements, which are not illegal.
Lawyer 2 Lawyer Internet Radio Spends the Summer Working Hard
How do summer associates programs at major law firms work? Hear the perspectives from current associates who were summers and a leader in the recruitment strategy at a large firm on this edition of Lawyer2Lawyer with me and my fellow co-host Bob Ambrogi, both attorneys and Law.com legal bloggers.
We welcome guests, Attorney Lydia Kelley, partner and co-chair of the recruiting committee at McDermott, Will & Emery in Chicago along with two young Associates now working at big firms, Claudine Coumbres at White & Case, LLP in New York and Michel Ayer at Quarles & Brady, LLP in Phoenix. Listen to their first hand experiences and opinions.
Copyright Issues Face Rapidly Changing Technology – Remote DVR Copiers OK For Now
Don't Get Excited; The Bigger Battle Still Looms
We know the DVR (Digital Video Recorder) that's attached to your TV doesn't infringe the copyrights held by movie companies and other Hollywood companies. Personal DVRs, like Tivo's unit, constitute fair use by individuals. Until yesterday, however, we were still up in the air over R-DVRs or Remote Digital Video Recorder, such as the one offered by Cablevision.
Well, we knew the lower court issued an injunction against it, but it was up on appeal and just decided yesterday, The case of The Cartoon Network v. CSC Holdings Inc. answers the question whether a remote DVR directly infringes so-called Hollywood copyrights. The Second Circuit overturned the lower court decision holding that the remote DVR service infringed the Cartoon Network's copyrights.
Cablevision's system works differently than Tivo. The latter is attached to your TV and the copy stays in your house. The copy of the program you recorded on Cablevision's system, however, is stored on a hard drive in Cablevision's office, not your home. TCN claimed that fact made it different than the Tivo box, but the court of appeal disagreed.
The Second Circuit overturned the District Court opinion reasoning that it was the consumer that pushed the button to record the program, not Cablevision, so if anyone was infringing, it was the consumer. The consumer isn't infringing if the recording is solely for private use.
What we don't know, however, is more interesting and perhaps more relevant to Cablevision, who right now is celebrating. Perhaps not for long, though.
The Cartoon Network's Complaint inexplicably does not contain a cause of action for contributory copyright infringement, a legal theory specifically excluded by the Second Circuit from its ruling: contributory copyright infringement. Sure, Cablevision isn't the one pushing the button to infringe on the copyright, but it is contributing the means to accomplish the copyright infringement.
Hint here: when the Court identifies a particular legal theory by name and says it's not ruling on that point, it's saying one of several things, but typically it goes something like this, "Hey guys over there at the Cartoon Network, get with the program. If you had just plead your case right, then we would have found for you." After all, with Fonovisa v. Cherry Auction, which was set up, briefed and argued by my partner, Craig Lindberg, ruling on the issue of contributory copyright infringement, the Courts have already given copyright attorneys a road map.
Let me explain. In the nationwide precedent-setting case of Fonovisa v. Cherry Auction, 76 F.3d 259 (9th Cir. 1996), the Ninth Circuit found swap meet owners liable for vicarious and contributory copyright and trademark infringement when counterfeit merchandise such as must casette tapes was sold by independent vendors at swap meets. The appellate court determined the swap meet owners sufficiently controlled their venues enough to know whether copyright and trademark violations were occurring, and they had an indirect financial stake in sales of the illegally infringing products.
The Court recognized this copyright and trademark infringement case was the first to reach the appellate level, and it ultimately became the precedent that was used to shut down the Napster file-sharing service. Fonovisa owned copyrights and trademarks for Latin music recordings as well as the Fonovisa record label. Fonovisa sued Cherry Auction in 1993, but initially lost at the federal district court level. On appeal, the Ninth Circuit reversed this lower court ruling and held the Cherry Auction swap meet liable for Fonovisa's damages.
Sure the Cartoon Network can appeal to the United States Supreme Court, but the question of direct copyright infringement is not the interesting one to pursue, and MIPTC predicts SCOTUS won't take TCN's petition for certiorari. Presumably, TCN will go back to the drawing board and discover the theory they missed the first time around - contributory copyright infringement.
Nude Dancing A Protected Form Of Art, Iowa Court Rules
Some will agree with that statement, and some won't. I suspect it the degree of your agreement is directly related to your gender, but that's just a guess. Since we're a legal establishment here, let's set the ground rules first, and then we'll cover the facts of this ... ah ... case. You thought I was going to say "titillating," didn't you? Here is Iowa's public indecency law, straight from Chapter 79, 81, § 728.5 of the Iowa statutes (hint here: you can skip right to the exception at the end of the statute):
"728.5 Public indecent exposure in certain establishments.
An owner, manager, or person who exercises direct control over a place of business required to obtain a sales tax permit shall be guilty of a serious misdemeanor under any of the following circumstances:
3. If such person allows or permits the exposure of the genitals or female breast nipple of any person who acts as an entertainer, whether or not the owner of the place of business in which the activity is performed employs or pays any compensation to such person to perform such activity.
6. If such person allows or permits a minor to engage in or otherwise perform in a live act intended to arouse or satisfy the sexual desires or appeal to the prurient interests of patrons. However, if such person allows or permits a minor to participate in any act included in subsections 1 through 4, the person shall be guilty of an aggravated misdemeanor.
The provisions of this section shall not apply to a theater, concert hall, art center, museum, or similar establishment which is primarily devoted to the arts or theatrical performances and in which any of the circumstances contained in this section were permitted or allowed as part of such art exhibits or performances."
In the small town of Hamburg, just north of Nebraska and the Missouri river, there's .... ah ... dancing establishment (a.k.a. theater) called Shotgun Geniez owned by Clarence Judy. Earlier last month on July 17, 2008, a group of young women went to the theater and one in particular got swept up in the dancing, jumped up on the stage and stripped.
Trouble was, she was only seventeen (just a few days short of her 18th birthday, actually) and Sheriff Steven MacDonald's niece. That last piece of identifying information landed the owner of Shotgun Geniez in court before District Court Judge Timothy O'Grady, who heard the case in a one-day trial on July 21st. On Friday, August 1, Judge O'Grady ruled that the prosecutor failed to prove the club wasn't a theater.
The DA, Fremont County Attorney Margaret Johnson, says she'll take the judge's decision to the Iowa Court of Appeals and perhaps all the way the Iowa Supreme Court in an attempt to overturn the law and apply it statewide.
Maybe she'd have better luck in Santiago, Chile prosecuting "La diosa del Metro" (the "Subway Goddess"), a 26-year old woman who was arrested after performing stripteases on poles in subway cars to protest that country's prudish ways.
Avvo Appoints J. Craig Williams To Its Legal Advisory Board
After killing me off during its beta phase more than a year ago, I've now joined Avvo.com's Legal Advisory Board. It's been quite a turnaround. Avvo.com (Avvo is short for Avvocato, which means "lawyer" in Italian) is a website that helps people navigate the complex and confusing legal industry to help them choose a lawyer. Here's how my relationship with the company got started.
Avvo launched its website in mid-2007, and when I first checked my listing, Avvo listed me as dead. I blogged about it and Avvo reached out to me and within a day or two, fixed the problem. I'm now alive and listed on their site. They've got a team of ultra-diligent folks who follow up with complaints about the service, and as CEL Mark Britton says, "we listen to our users and make changes." And listen they do. Most recently, Avvo launched a new look and new services, Avvo Legal Guides and Avvo Answers & Advice.
Mark and I started an off-and-on series of long telephone conversations over the past year and almost immediately became good friends. Mark is one of those guys who does what he says he will - you can always count on him, and as a consequently, his company. As we talked about the services offered by Avvo, I offered suggestions only to see them turn into tweaks on the site.
Avvo is constantly trying to improve its product of providing a means of allowing consumers to connect with reputable lawyers; an admirable goal. As a new company, there's always things to fix and people that won't be happy being rated. As part of the team now, I'm here to help, too. If you have concerns about the site that aren't being addressed, let's talk. Just don't sit back and complain. If you're a lawyer, claim your profile and get a free website. Start responding to consumer questions and you'll get clients. Write and post a legal guide, and show you're a professional. Get involved. If you're a consumer, find a lawyer if you need one. If you've already got one, review your lawyer.
The best part about the site, however, is connecting those who wouldn't otherwise get connected. In one location, consumers can read all about lawyers from a neutral source.
What Happened To Handwriting?
Some law student members of the "I" ("I" for Internet and self-centeredness) Generation haven't handwritten anything other than their name on a credit card slip for more than the three years they've been in law school. You know the culprit - email, text messaging, instant messaging and papers written on the computer.
Let your fingers do the walking, not the writing, they say.
So it's understandable that when it's time for the Big Test - the bar exam - those law students are going to type their answers on their computer rather than hand-write in a blue book. But what about cheating, you ask? Not to worry, the technology hounds have that issue figured out. Right before the bar exam, the tech geeks install a program on the students' computers that locks out the Internet and every software program other than Word. After the three-day exam is over, the tech geeks uninstall the program with their super-secret password.
Temporary lockdown, in a manner of speaking.
But heaven forbid, the State Bar lockdown program doesn't work on Macs, so those students are out of luck unless they rent a computer or borrow a friends. The lockdown program works only on computers running a Windows operating system. There is one law, however, that applies to computer technology that the students didn't study in law school. It applies itself rather randomly, except at Bar Exam time, when it's practically guaranteed.
You know it well, I assume. It's called Murphy's Law, and its technology corollary: New systems generate new problems. That corollary works with Murphy's law, that holds something like "if it can go wrong, it will go wrong at the worst possible moment."
Take, for example, what happened in last year's Bar Exam in New York. According to John McAlary executive director of the New York State Board of Law Examiners, quoted in this New York Times story, the temporary lockdown software program malfunctioned in the middle of the exam. The story continues with this horror when they discovered the meltdown: "Hundreds of laptop users who navigated back to a previously completed essay found a blank screen. In the months after the exam, Mr. McAlary said, the board salvaged all but 47 essays. Some of those candidates passed or failed regardless of their score on the lost essay, leaving only 15 who were given an estimated score. Nine of them passed the bar; six didn't."
The NY Bar selected a new software provider for this year's impending fiasco, but the law students aren't convinced they will any fare better. Half of the 12,000 students sitting for the exam are willing to take the risk and half still aren't buying it. '''I was kind of scared to do the handwriting,'' said Katie Brandes, a recent graduate of Columbia Law School," the NYT article reports.
The Bar itself isn't worried, and the lawyers who run the exam have things covered. They've issued this scare-your-pants-off-warning to the students: "Technical difficulties may include hardware or software malfunctions, data saving or retrieval problems, operator errors, upload or download problems, or the loss of electrical power at the examination facility. In the event any technical difficulties occur during the bar examination, you must hand-write your essay answers in the answer books provided and no additional time may be allowed. If you choose to continue to use your computer to write your essay answers after experiencing technical difficulties, or when you have been instructed not to do so, you do so at your own risk.''
Third-year students now fully trained in the law understand the significance of the warning. If you type your answers and your computer or our software fails, you'll likely flunk the bar and we're not going to save you.
I'd get out my Bic pen and bluebook and write my heart out, which is exactly what I did when I took the Iowa and California Bar Exams, and passed both, thank you very much.
I will admit, however, that for the most part the only thing I hand write now is my name on a credit card slip - but thankfully I don't have to pass another Bar Exam.