May It Please The Court
Quote of the Day - REPORTER, n. A writer who guesses his way to the truth and dispels it with a tempest of words.
Keystone Klutz Kauses Kozinski Kerfuffle
The heart of legal reasoning is set out in the IRAC mnemonic: Issue, Rule, Analysis and Conclusion, as evidenced by two well-presented reviews. Professor Lawrence Lessig's also gives us the facts and tags the whole dispute as nothing more than a "Kerfuffle," which I borrowed to use in the headline. Professor Eugene Volokh amplifies in his post Lessig's solid legal reasoning. Let me humbly add a practicing lawyer's perspective. While I'll focus on the practical aspects of the situation, I highly recommend reading those two posts first.
First a disclaimer. Like Professor Volokh, I count myself among one of Judge Kozinski's friends, although obviously not as close. Judge Kozinski graciously attended one of our firm's Fall Harvest Open Houses and wowed our guests with his intellect and legal reasoning. I've argued an appellate case in front of him, we occasionally correspond by email, go to lunch once or so each year and he wrote the foreword to my new book, How to Get Sued. I read his opinions with relish because I enjoy his writing - it's a refreshing change from the typically dry legal opinion we regularly see from our appellate courts. There are too few legal writers like Judge Kozinski.
That said, let's look at the central issue here: has Judge Kozinski done anything wrong, let alone illegal? The two professors look at all the options, and conclude no rule has been violated. Instead, they point to a disgruntled gadfly and the mainstream media as the culprits. I couldn't agree more. I couldn't come up with any breach of contract, breach of duty or violation of judicial canon of ethics. Perhaps some would argue that Canon 1 applies, which requires judges to "maintain high standards of conduct, among other things.
Let's see. Judge Kozinski's family maintained files on a home computer he thought was private, not available to or indexed by the internet search engines or the general public, where he and other family members kept files that are readily available elsewhere on the internet on his home computer.
Many who don't understand computers and the internet claim that Judge Kozinski's home computer is a website. It isn't, as we generally understand websites. If it was, then every computer that's connected to the internet is a website. If you have any doubt that your computer is "available" on the internet, then go to http://www.whatismyip.com/ and see what it reports (it will inspect your computer's URL). The number that you get is the internet address of your home computer. Send it to a hacker, and they'll get right in.
If you don't have a hardware or software firewall up, or if either has ports open, then anyone can access your computer and find out what files you have on it. Judge Kozinski opened up a port on his home computer and made it accessible to certain people through a more conventional URL address (alexkozinski.com), but not to the general public, since hypertext code on the computer specified it wasn't to be indexed. If you didn't know it existed, then you would likely never have found it. But some did, and found files stored on the computer.
Some would consider those files distasteful, but certainly everyone's entitled to their opinion. Lessig described the computer within Judge Kozinski's private home. What we keep in our private homes, is, to be sure, private.
On the other hand, let's look at the gadfly who poked around Judge Kozinski's family computer. He could be charged with invasion of privacy and trespass, at the very least. There's a big difference between the two behaviors. Judge Kozinski thought his material was private, and the gadfly went where he was not invited, not much better than the Keystone Kops.
The mainstream media pounced on the disgruntled gadfly's ill-gotten materials like a desperate beggar grabbing at change tossed by a passerby. As Don Henley said, "We can do the innuendo; We can dance and sing; When its said and done we haven't told you a thing; We all know that crap is king..." Sex sells newspapers, but that's about all it does.
There's a reason I don't by tabloids.
As Marci J. Tiffany, Esq. Judge Kozinski's wife of thirty years, points out, the original Los Angeles Times story "authored by Scott Glover, is riddled with half-truths, gross mischaracterizations and outright lies. One significant mischaracterization is that Alex was maintaining some kind of "website" to which he posted pornographic material ... The "server" is actually just another home computer that sits next to my desk in our home office, and that we use to store files, perform back-ups, and route the Internet to the family network. It has no graphical interface, but if you know the precise location of a file, you can access it either from one of the home computers or remotely." Even judges are entitled to have private lives and ask the rest of us to respect the sanctity of their homes.
One of our hallowed protections in the Constitution is our right to privacy, and here Judge Kozinski's privacy in his home was not only violated, but exploited by unprincipled hucksters. We recognize what it is, however, and can choose to disregard it, which this writer recommends.
Zoning The Ocean Around Us
The federal government asserts a 200-mile territory of jurisdiction extending from the land. That area is largely policed by the Coast Guard, using just 1,400 boats and 211 planes over 12,383 miles of coastline.
Just in case you didn't pull your calculator out, that's 2,476,600 square miles. To put it in perspective, those numbers equate to one Coast Guard unit (boat or plane) for every 1,537 square miles of ocean that have to be patrolled 24/7/365. The Coast Guard has 40,150 personnel on active duty.
So, in a forty-hour workweek, each square mile of 1,537 could be patrolled once by one person, assuming no breaks and no one sitting behind a desk and assuming the boat or plane was piloted by one person. Do the math. It's not great odds, especially if you're lost at sea in one square foot of those square miles.
Each state controls three miles out from its shoreline under the Submerged Lands Act. They manage, develop, and lease that state's natural resources throughout the water and seabed. On the other hand, the federal government's 200-mile jurisdiction arises from the Outer Continental Shelf Lands Act, but it can also assert control within the state's jurisdictional three-mile area.
So now that you understand the numbers and the whys and wherefores, why am I giving you all this background? One state has followed the 2003 recommendation of the Pew Oceans Commission.
I knew you were curious.
Massachusetts has passed landmark legislation that seeks to establish a comprehensive plan to balance the commercial and recreational uses of oceans and the protection of its environmental value. The legislators are going to zone the ocean. You know, like Residential, Commercial, Industrial and Open Space.
I'm not kidding.
Governor Patrick signed the Oceans Act (S 2699) into law at the end of May 2008. The news just reached California (it must have traveled by a slow boat via China or got stuck in a postal zone).
What a novel idea. Zoning. Not much different than the way we zone land, except it moves. Don't tell the fish; they'll never get it.
So now proposals for fishing, recreation (think sunbathing on the beach), liquefied natural gas terminals, gas pipelines, oil drilling, sewage disposal, storm water runoff, desalination plants, garbage barges, nuclear power plants, sand mining on the seabed, scientific research, marinas, moorings, floating cities, telecommunications cables, wind farms and innumerable other uses of the ocean must be balanced and considered, along with the need to preserve the oceans and the environment, and all by an apparently all-powerful ocean zoning commission.
Don't worry, though. The Coast Guard will still rescue you within the three-mile zone. You may need a permit, however.
Lawyer 2 Lawyer Internet Radio Gets Educated on the Emergence of New Law Schools
A sign of the times ~ more law schools? According to the National Law Journal, law schools are on the rise with as many as ten new ones, and a majority set to open on the East Coast. That's what me and my fellow Law.com blogger and co-host Robert Ambrogi discuss with experts, Dean Erwin Chemerinsky, founding dean of the Donald Bren School of Law at UC Irvine and Dean Thomas F. Guernsey, President and Dean, Albany Law School.
We explore traditional vs. new age law schools, what these new law schools have to offer, the ABA accreditation process and take a look at the reality after law school for students. Click on the link below and give a listen.
Lawyer2Lawyer Internet Radio Peers Into The Crystal Ball For New Law Schools
A sign of the times: more law schools? According to the National Law Journal, law schools are on the rise with as many as ten new ones, and a majority set to open on the East Coast.
That's what me and my fellow Law.com blogger and co-host Robert Ambrogi discuss with experts Dean Erwin Chemerinsky, founding dean of the Donald Bren School of Law at the University of Californai, Irvine and Dean Thomas F. Guernsey, President and Dean of the Albany Law School.
Please join us as we explore traditional vs. new age law schools, what these new law schools have to offer, the ABA accreditation process and take a look at the reality of what happens after law school for graduates.
Driving While Talking: California's Newest Crime
Hang Up And Drive
Come July 1, 2008, Californians won't be able to be so talkative while driving a car or truck. That's because a new law requires drivers to use a hands-free device for talking on their cell phones. No more driving with one hand on the wheel, one hand on the cell phone and your mind somewhere else.
Well, you'll still be able to have your mind somewhere else, just not with one hand on the cell phone.
Other drivers across the state are rejoicing, calling the new law an important step for safety. "Hang up and drive," one Californian was heard to shout at another driver, while honking his horn.
Essentially, if you make or receive phone calls other than emergencies, then you must have a hands-free way of talking. Motorists who don't can be pulled over and cited, $20 for the first offense and $50 for subsequent violations. If you're under 18 and driving, you can't use any type of wireless device to communicate, regardless whether you have a hands-free phone.
The CHP offers these tips for your safety.
The Supremes Call 'Em Like They See 'Em: Major League Baseball Strikes Out
Back in 2005, Major League Baseball pitched some fast heat at fantasy baseball, and specifically C.B.C. Distribution and Marketing, Inc., the company that set up rotisserie leagues and provided baseball stats to its customers. MLB filed suit against CBC, claiming that the league owned the stats. CBC countered and claimed the stats were in the public domain.
If you've never played fantasy baseball, it's baseball on paper - you create your own team and trade players, but you keep score using the real baseball player's actual stats. In other words, if your player hits a home run in real life, then he hits a home run for your team, even though the actual player might be on the Chicago Cubs, but you have him on your team named Dave's Demons, along with other players from other unrelated teams all over the real league.
Yeah, I know: geek city; but come on, a lot of people love it.
In the 8th Circuit Court of Appeals where the case landed, the court there had no trouble dispatching MLB's claims, and ruled for CBC. Undaunted, Major League Baseball, joined by the union representing the players, filed a petition with the United States Supreme Court seeking to overturn the decision.
Just Monday, the Supremes summarily declined to hear the case, so the lower court's ruling stands, and fantasy baseball is safe to play once again. MIPTC called this one when the case was first filed, and predicted this win for CBC.
Lawyer2Lawyer Internet Radio Looks At The Vioxx Reversals
Vioxx litigation is always upredictable. A $26 million jury verdict against Merck was overturned in Texas state court. Separately, an appeals court in New Jersey sharply reduced a verdict in another Vioxx case.
Please join me and my fellow Law.com blogger and co-host Bob Ambrogi as we welcome Attorney Tommy Fibich, partner in the firm of Fibich, Hampton & Leebron, LLP out of Houston, Texas and Brenda Sapino Jeffreys, reporter from Texas Lawyer, to explore the reversal of these verdicts. Join us to hear a plaintiff attorney and news reporter's perspective and see what the future holds for the verdicts of those affected by Vioxx. Click on the link below.
With The California Supreme Court Poised To Rule On Non-compete Agreements, Trade Secret Agreements May Come Into Play More Frequently
Right now, California state courts won't enforce a non-compete agreement between an employer and employee absent equal bargaining power or payment for the agreement. In federal court, such contracts can be upheld, however, if narrowly drawn. Our state supreme court is considering clarifying the rule on non-compete agreements - something MIPTC will report on when the opinion is issued.
As an alternative to drafting non-compete agreements, many California lawyers use trade secret agreements, which are legal, and actually codified in our California's Uniform Trade Secrets Act, in the Civil Code, starting at section 3426. Essentially, trade secrets are how a company does business, and may include things like customer, vendor and employee lists, as well as the way the business operates in the marketplace.
With a trade secret agreement in place, a company can prevent a departing employee from using its hard-earned capital to the advantage of a new employer. In the right circumstances, courts will issue injunctions preventing the departed employee and new employer from using the old employer's information.
Not quite as sweeping as a non-compete agreement, but just about as powerful.
Like with all lawsuits, the statute of limitations can bar trade secrets claims. The statute is three years - if you don't bring your suit against the departed employee/new employer within three years of the date you learn your trade secret information is being used, the court will dismiss your claim.
The legislature reasoned that after three years, most of the trade secret information is stale anyway.
But the question answered by this case, Cypress Semiconductor Corp. v. Sup.Ct., helps define when the statute starts to run, and gives some backhanded advice to companies trying to protect their trade secrets.
Let's get to a short setup of the case. Silvaco Data Systems developed computer code called SmartSpice for its automation software. A Silvaco employee left in 2000 and used the software in a similar program for his new employer Circuit Systems, Inc. called DynaSpice. Silvaco sued the employee and CSI and settled in 2003.
In 2000 and after, CSI had been licensing its DynaSpice software to other companies, including Cypress Semiconductor Corporation. Silvaco, however, waited to sue Cypress until after it settled with CSI.
When CSI responded to Silvaco's complaint, it claimed that the statute of limitations barred the claim since Silvaco had failed to sue within three years of when it learned of the violation of its trade secrets. The trial court sided with Silvaco, but the appellate court reversed in the opinion in the case citation link.
The lesson here? If you're going to sue over a trade secret violation, then follow the trail and see if not only your departed employee and new employer are using your trade secrets. You may have to sue others to protect your rights. And sue in time.