May It Please The Court
Quote of the Day - We feel there is already widespread broadband available today.
When The Fat Pipe Gets Thin
Back when you had to walk to school uphill both ways in the blinding snow, there was dial-up Internet access. In fact, there may be some readers who remember taking the AT&T handset and squeezing it into two circular rubber holders so your personal computer (the term PC hadn't yet been invented) could warble those analog signals to a big
You remember War Games with preteen Matthew Broderick, don't you?
Then our kids were born, cell phones were invented, the sun finally dawned on man and the cable companies introduced - taaaa daaa with a drum roll, please - Broadband, with a capital B, thank you very much. The Internet was born and Wikipedia became The Word.
Broadband, a.k.a. the Fat Pipe, promised and for the most part delivered blazing speeds and fast downloads. And for the geeks among us, fast uploads. That is unless you're on the Internet in your time zone from about 4:30 p.m. to 6:30 p.m, when kids, Dads and Moms plunk down in front of their computers and surrrrrfff the 'net. All at the same time.
It's like a virtual traffic jam. In fact, if you think that's bad, try the weekends when the Internet turns into a parking lot and the Fat Pipe gets thin. Very thin.
So, it's Class Action Man to the rescue. San Fransiscan Jon Hart wasn't happy with his download and upload speeds and suspected that his Internet Service Provider, Comcast, was intentionally slowing down his file transfers with his friends. His friends thought so, too, but they couldn't prove it.
Then the Associated Press published a report, allegedly validating their suspicions. Now our hero has sued Comcast, alleging damages from slow Internet speeds and false advertising. His lawyer wants to turn the suit into a class action.
Meanwhile, MIPTC's cable provider, Cox Cable, is briefly shutting down our Broadband Internet service next week to install a fiber network and replace the Fat copper Pipe. Here, downloads from the Internet will be like drinking from a fire hydrant. I guess they'd rather switch than fight.
What's The Point Of Having A Will?
Now don't get me wrong here, but this situation comes dangerously close to too much government regulation. Let me explain. 60-year old Anthony "Corky" Sliwkowski had the nerve to die with a will.
Well, that's not really the problem, is it? It's what happened after he died that presents the issue prompting my question in the headline. You see, Corky was a dentist, and a wealthy one at that. He had a $3 million dollar estate, the kind worth fighting over.
And it's a fight we indeed have. Corky divorced some time ago, and had three children from his prior marriage. Two years ago, he signed a will disinheriting his three children. I'm guessing here that the divorce was a nasty one.
Trouble is, two of the three children were minors, aged 11 and 13 at the time of his untimely death. The oldest child was of majority, over age 18. The money, Corky's entire estate, went instead to his sister, Flossie.
His former wife, Barbara Sliwkowski, was not happy that Corky disinheirited his two daughters, so she sued to ensure they'd inherit at least part of his money. To be fair, you should know that Corky hand-wrote out some notes about adding his daughters back into his will, everyone involved in the dispute agrees Corky very much loved his daughters and around the time Corky wrote his will, he was likely in a manic-depressive state.
And all's well that ends well: Flossie and Barbara settled the lawsuit, and the girls each get $200K toward their education, and apparently Barbara had earlier received an allegedly sizable settlement in her divorce, and Corky's life insurance policy went to his two daughters.
Now that everyone's calmed down, consider these two other points made in this Boston Globe Online story by Jenna Russell: first, she notes "Some states have already wrestled with the question and determined that a father's duty does transcend his death. A Massachusetts ruling, decided by a 4-to-2 vote of the Supreme Judicial Court in 2000, found that a father's death 'does not extinguish his duty to support his minor child,' even if his will severs ties to the child."
Next, the story points out Barbara and her lawyer want to introduce legislation in Rhode Island, where Corky died, preventing fathers from disinheriting their minor children. [July 24, 2008 correction: Barbara Silwkowski has informed me that she and her lawyer introduced the legislation "to make child support a valid claim against an estate." MIPTC regrets the error. Further, according to Ms. Silwkowski, the legislation was introduced and passed on the first reading.] Certainly it seems a good social policy to ensure fathers provide for their daughters, but legislation? I thought that's what divorce courts were supposed to do with that thing they call child support. Otherwise, if Mom and Dad are still married, would such legislation invade the marital finances and require certain financial standards to have children?
Where do we draw the line? You can only have kids if you can afford it? Who determines how much you have to earn to have children. Silly questions, yes, but ones that may get asked in this type of statute.
WLF's Fifth Annual Fall Harvest Open House - We've Got A New Name
WLF grew a bit last night - we added a name to our letterhead, unveiled appropriately at our Fifth Annual Fall Harvest Open House. We're now WLF | The Williams Lindberg Law Firm, PC, and we've very proudly changed our logo on our website. If you weren't here, we missed you. If you missed it and want to come next year, then please save the date now - it will be Thursday, November 13, 2008. Make sure you let us know you want to come so we can send you an invitation.
Our named partner, Craig Lindberg, is a well-known litigator, having established the precedent in contributory copyright infringement, used most famously to shut down Napster. He's also an excellent litigator, writer and all-around good guy. He's been my partner since we started, now almost five years, and he successfully twisted my arm to change that logo you see at the top of the page. I'm tremendously proud to have him as a named partner, as were all nearly 140 guests at last night's party.
The party, put together by our very own Leigh Dierck and catered by the always yummy Plums Cafe, was a big hit with our guests, including one very well known anonymous guest, known best in the blogosphere as Ed. of the Blawg Review. Leigh got him to give up his last name for his nametag, and it read Ed Post. I'm not convinced. But just so you're convinced he was here, here's his business card, drawn from the offbeat (just like our famous editor) Gaping Void by Hugh MacLeod.
Remember, though - next year's Open House won't start until you get here and won't finish until you leave. We're looking forward to seeing you.
Lawyer 2 Lawyer Internet Radio Contemplates Early Prison Release
William Flynn, the teenage lover who murdered Pamela Smart's husband in 1990 is asking a judge to reduce his prison sentence 11 years before he is set to become eligible for parole in 2018.
Please join me and my fellow Law.com blogger and co-host Bob Ambrogi, as we talk to the experts, Attorney Marsha Kazarosian and Attorney Allan H. Stokke, to discuss the potential early release of William Flynn. On Lawyer2 Lawyer, we also discuss how the request is filed and the criteria, the pros and cons in this particular case, and Flynn's juvenile status at the time of the murder vs. the expectation that "he should pay for what he did." Join us!
Signs, Signs Everywhere There's Signs. Except in San Diego And Maybe Beaumont
Laws about billboard signs rarely make the news, except when a sign company wants to plant one near your business or home, or in these two cases, in your city. Big signs make easy targets for politicians because attacking them generally garners support among constituents. After all, how many sign owners are voters? Not very many. Recently, the courts got in on the act, too.
The first of November was a banner day, so to speak, for the advancement of sign law. If you're a company who owns billboards, it was half good and half bad. If you're a city trying to prevent billboards from going up, it was half bad and half good. The Ninth Circuit came out with two, side-by-side opinions about the First Amendment right of free speech and the constitution.
The sum and substance of the rulings go like this. In San Diego, if you own a business, it's likely you will be able to put up a sign to advertise your business, as long as it's on or near your business and small. If you want to erect a freeway-sized billboard, then you probably won't have too much luck. The Ninth Circuit upheld the City's size and height restrictions, which pretty much eliminate big signs.
In the Inland Empire City of Beaumont, it doesn't pay for politicians to play with their sign ordinances. It looks too much like you're trying to play favorites, and if there's one thing the Constitution won't tolerate, it's favorites. Equal treatment under the law is the call of the day.
In fact, it was equal treatment under the law that doomed the signs in San Diego, and equal treatment under the law that gave the signs a second chance in Beaumont. It's a law school professor's dream. Two cases involving virtually the same law and at first glance similar facts, decided the opposite way. Both lawsuits challenged sign ordinances based on the free speech right embodied in the First Amendment and the equal protection right in the Fourteenth Amendment.
Notice I said "at first glance."
That's the rub. Most issues in the law are fact sensitive, and that's what makes it a horse race. Let me explain. In Beaumont, sign company Outdoor Media Group applied for a permit to erect four signs. In response, the City repealed its sign ordinance and then enacted a new one. OMG claimed it suffered an equal protection violation because the sign ordinance discriminated between commercial and noncommercial billboards.
In San Diego, the sign ordinance makes no distinction between commercial and noncommercial speech. It simply limits the size and placement of any sign, no matter what the content. Therefore, the regulations were content-neutral and limited only time, place and manner restrictions. The Court found that San Diego's purpose in enacting the sign code was to optimize communication and protect the City's public and aesthetic character. It furthers these interests by setting its restrictions according to the width of public rights-of-way and the speed limit. Get Outdoors, II, the sign company challenging these restrictions, lost because everyone was treated equally. There's just not going to be any more big signs in San Diego.
The lesson for cities is an easy one: don't discriminate and permit some signs to do one thing and others to do something entirely different. Treat everyone the same, and you will have a constitutionally attack-proof ordinance. For sign companies, the lesson is equally easy. Look at the ordinances first and then pick your battles. Or just find an empty stretch of well-traveled freeway.
PerfumeBay vs. eBay. Are You Confused?
In the online world, words mean everything, especially when the words form a domain name and are potentially confusing. The Ninth Circuit just decided that the PerfumeBay online domain that sells - guess what - perfume, is likely to be confused with eBay, the online domain that sells not only perfume, but just about everything else.
Are you confused between the two?
The Court ruled, "non-conjoined forms of Perfumebay's mark, such as Perfume Bay, did not create a likelihood of confusion." What? Well, apparently in the parlance, conjoined means: PerfumeBay, as in PerfumeBay.com. Non-conjoined means Perfume Bay, as in two words.
For a moment there I thought they were talking about twins.
Unfortunately, the Court's ruling is a death knell for Perfume Bay. Without the ability to use perfumebay.com, it's online storefront is out the window. Literally. Now it's users will have to follow the scent to another website, this one presumably with a dash or underline between the two words.
PerfumeBay's blog, named MakesNoScents.com, points out the company will continue the fight. Presumably, we'll see an application to the Supreme Court. Stay tuned.
What's The Difference Between Copyright Infringement On The Web And In Books?
Harry Potter And The Pitched Copyright Battle
The famous author of the Harry Potter series of books is about to give us the answer to that question, one that perhaps has neither been asked nor answered before. According to Associated Press Reporter David B. Caruso, Author J.K. Rowling has filed suit in Manhattan federal court (no jury demanded) against an upcoming book to be published called the Harry Potter Lexicon. It's planned to be published on November 28, 2007, and will be some 400 pages long. It's light reading compared with her later books, but will turn heads in the world of copyrights.
You see, the Harry Potter Lexicon has been published before - on the Internet. It was published not only without challenge by Rowling, but apparently also with her blessing. In 2004, she bestowed a Fan Site Award on the the website and its author, Steve Vander Ark, a middle school teacher who founded the website back in 2000 in his spare time. In fact, the publisher says Rowling provided this comment on the Harry Potter Lexicon website: "This is such a great site that I have been known to sneak into an internet cafe while out writing and check a fact rather than go into a bookshop and buy a copy of Harry Potter (which is embarrassing). A website for the dangerously obsessive; my natural home."
Now that Vander Ark, through RDR Books, wants to publish his site in a hard-copy book, Rowling is instead bridling. She plans her own lexicon of everything Harry Potter and believes Vander Ark's book will interfere with her sales. As E! Online puts it, it's a case of "Harry Potter And The Unauthorized Lexicon."
The issue here is one of waiver, however. In copyright law, waiver or abandonment of copyright "occurs only if there is an intent by the copyright proprietor to surrender rights in [her] work." 4 Melville B. Nimmer & David Nimmer, Nimmer On Copyright ¶ 13.06 (2000), as cited in A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001). For non-lawyers, Nimmer on Copyright is the definitive treatise relied on by many courts, not just our own Ninth Circuit.
The question before the house, then, is whether Rowling's approval of the Harry Potter Lexicon website and her failure to issue a Digital Millennium Copyright Act takedown notice will operate to waive her right to stop the Lexicon from being published as a book or alternatively constitute fair use of her work. It's unlikely that courts have ever faced the former issue before. Here you've got Rowling's knowing approval of a work she now claims infringes on her Harry Potter copyrights (now owned by Warner Brothers), which has been bestowed for at least three years running, if not seven.
It's going to be a tough road for Rowling to walk. There isn't a difference between a copyright on the Internet and a copyright in books. It's all the same copyright - the differences are only in the media and the remedies. Failure to police the copyright can operate as another means to prove waiver, especially here when Rowling not only knew about the violation she alleges now, but she also approved it some three years ago and then did nothing to enforce her copyright.
Fair use may also be one of the defenses asserted against Rowling's suit. If a court determined that the Lexicon is fair use of Rowling's copyrighted work, then she won't be able to enforce her copyright against it. Fair use can be found where copyrighted content is displayed for comment or scholarship, which is apparently what the Lexicon is all about.
How would you rule? MIPTC predicts Rowling's lawsuit will fail and the Lexicon will be published.
In the meantime, since you can't read the Lexicon in print, you can read the Complaint here.
Ten Tips For Dealing With Your Insurance Company After The 2007 California Fires
As the smoke now simmers and smolders, we're starting to figure out how to address this mess created by seven days of hellish fires in Southern California. This post covers ten tips on dealing with insurance companies on catastrophic claims and how to learn from the lessons people suffered through in the aftermath of the Katrina disaster as a result of the ways insurance companies handled those claims.
So let's get right to it. Here's the top ten tips to deal with insurance companies on catastrophic claims:
(1) Lawyers call it RTC: Read The Contract. Your insurance policy is a contract between you and your insurance company. It spells out what you're supposed to submit for your claim and what the insurance company is required to provide in response. You're going to find three relevant coverages: Building, Contents and Living expenses/business interruption. If you've lost your home or business, then you'll be submitting claims under all three. If you don't have a copy of your policy, then ask your agent for one or send a letter to your carrier asking for a certified copy.
(2) Gather evidence of your claims and submit it to your carriers now. NOW. Don't wait. Take pictures and video and send it in. Send in samples of the ash if they don't believe you. Tell them you'll submit more later, but get the process started now. Get the additional living expenses / business interruption coverage payments coming your way. Keep a copy of what you submit, what you receive back from your insurance carrier and every other piece of paper associated with your claim. Your carrier has 40 days to respond to your claim under California's Fair Claims Practices Act, so get started now. Did I say NOW enough?
(3) Submit your claim to state and local governments. FEMA may provide reimbursement, as well as several California state agencies. The Small Business Administration will help businesses get back on their feet. Check out the Helping Handbook for other resources.
(4) Reconstruct your house and its contents in your mind and write it down. Check your iPod to see if it has any photos of your house or anything inside it. Ask your friends if they have photos. When you create your list of contents, systematically go through each room in your house and write everything down. Estimate the value to replace your items and list each one individually. Create a spreadsheet.
(5) Deal with the insurance company's adjuster, but consider hiring your own "public adjuster" or obtaining an independent valuation of your list. Remember, the carrier wants to minimize its payments to you, and will try to negotiate you down on each point. Use your agent to pressure the insurance company. Don't cave to unreasonable offers.
(6) Use your head. As you rebuild your home, make sure you engage a licensed contractor. Make sure you have an agreement with your insurance company about who's going to pay that contractor and when.
(7) Wait until everything's been replaced and your home has been rebuilt until you sign a release of your insurance carrier's liability to you. Otherwise, the carrier is no longer on the hook to you. Keep your claim open as long as you can and submit additional items lost as you remember them.
(8) Talk to your CPA. Most fire losses are deductible. You'll want to have records and information to enable you to obtain these deductions. Small consolation, but everything helps. Your carrier cannot take advantage of these deductions to offset your claim.
(9) Refuse to take less than it will cost to replace your contents and rebuild your home (assuming you have replacement cost coverage, not actual cash value coverage). You paid for the coverage, you're entitled to the benefit of your bargain. If you have problems, then report your insurance carrier to the California Insurance Commissioner.
(10) Hire an attorney to litigate your claim with your carrier only as a last resort. While some attorneys will handle insurance cases on a contingency matter (they take a third or more of your recovery), you may want to limit the contingency to the punitive or bad faith portion of the recovery to ensure you recover the money you need to replace your contents and rebuild your house. Otherwise, consider hiring the attorney on an hourly basis.
In the aftermath of the Katrina disaster, people waited to submit claims to their insurance carriers and the government. Some as long as two months. Don't wait. Get started now.
Louisianans hired unlicensed contractors and got scammed. California law does not allow anyone other than you to swing a hammer to drive a nail to rebuild your house if they're not licensed. In this state, you don't have to pay a contractor if he/she is not licensed - no matter how much work they've done. In fact, if the contractor's license lapses during the job, you don't have to pay for any part of the job.
Stay on top of the process. Lawsuits arising from the way insurance companies handled claims after Katrina are just coming to trial now, some four years later. In California, courts are required by the state legislature to get the majority of cases handled with a year, and in most cases no longer than 18 months. What happened in Louisiana shouldn't happen here, but there are lessons there we may repeat if we're not careful.
No one will get your claim resolved faster than you, especially if you push. But remember, honey is much sweeter than vinegar. A little kindness goes a long way, and human nature requires us to help those who are nice.
But if you can't get it handled to your satisfaction, then you can likely find the lawyer you're looking for on Avvo. Or call me at 949-833-3088. I know a few lawyers in California.