May It Please The Court
Quote of the Day - Many people buy life insurance and forget about it. What you buy and how much you buy depends upon two things: who you love and who you owe.
Farmers Life Insurance Policy Escapes Court Scrutiny, But Not Damning Admission
When you think of the term "services," do you think that description includes life insurance? Before you ponder that question too long, the Consumer Legal Remedies Act, which is relevant to our inquiry today, defines "services" as follows: "work, labor, and services for other than a commercial or business use, including services furnished in connection with the sale or repair of goods." California Civil Code, § 1761(b).
Sure, some businesses purchase life insurance, but in this situation, Pauline Fairbanks individually bought a universal life insurance policy from Farmers New World Life Insurance Company. Farmers sells what it calls interest-sensitive universal life insurance policies. According to Farmers, the Flexible Premium Universal Life policies were supposed to be "permanent." Farmers told Pauline that she could keep the policy in full force indefinitely by paying a stated premium amount.
According to the Court, "In reality, this premium amount was insufficient to keep the policy in force to maturity."
Pauline filed a class action, and alleged Farmers' policies were misrepresented and that Farmers engaged in deceptive and unfair practices in the design and marketing of the policies. She also alleged these policies were systematically underfunded so that they would lapse before maturity, and that Farmers fraudulently failed to warn policyholders of this possibility.
She sued under the Consumer Legal Remedies Act, assuming life insurance was a service. Farmers got the case dismissed by the trial court, and Pauline appealed.
Simple issue, but the appellate court upheld Farmers' dismissal of Pauline's case. Here's how they looked at it: "Insurance, in contrast, is defined by the Insurance Code as 'a contract, whereby one undertakes to indemnify another against loss, damage, or liability arising from a contingent or unknown event.' ... An insurance contract is not something akin to a haircut, a plumbing repair, or a two-year warranty on a microwave oven - it is simply an agreement to pay if and when an identifiable event occurs."
How would you rule? MIPTC looks at life insurance the same way it does as a contract to purchase a microwave. When I turn it on, it better work as promised.
Blawgworld 2007 Up, Running And Available For DownloadIf you're looking for everything blawgging, then you might want to check out Blawgworld 2007. It's a compilation of some 77 blogs and their posts, all in one, handy-dandy downloadable book.
I STRENUOUSLY Object, Your Honor! - Oh, Make That HEAVILY Object
Trial attorneys know it makes little difference to a judge whether you object in court or STRENUOUSLY object. In fact, I once saw a judge respond to the STRENUOSLY objecting lawyer that he was STRENUOUSLY overruled.
You get the point.
Apparently, the Ninth Circuit doesn't see it that way. The Court ruled that where the amount of drugs in issue in a case can be HEAVILY disputed, it's improper to prevent the defendant from having a forensic expert testify about the quantity in issue. The outcome will affect the length of the defendant's sentence.
Now I know. Instead of STRENUOUSLY objecting, I'll have to HEAVILY object next time.
The Seven-point Personal Information Technology Property Manifesto
We've set up an entire statutory and regulatory scheme for various types of intellectual property such as patents, trademarks and copyrights. You can protect your inventions, your designs and slogans and even your ideas. Perhaps within these three levels of protection you can protect your personal information technology property, but unless you register it, no go. There's no such thing as a common law copyright - it was eliminated back in 1834, just in case you were wondering.
What do I mean by "Personal Information Technology Property?"
Think about scope of the electronic things you create: personal websites, Facebook, My Space, videos on You Tube, Flickr photographs, text messaging, avatars on Second Life, Linden dollars, characters on World of Warcraft and a myriad of other online games, electronic money and other video game possessions, e-mail, blog entries, commentary, and a host of other new technological property that hasn't even been invented yet. Sure, you can register each of these things with either the US Patent & Trademark Office or the US Copyright Office, but have you?
I suspect not.
Once you post videos, films, songs, audio, photographs and words online without registration, you lose just about any type of protection you could have secured for these items. About the only type of online protection exists for these things is the voluntary Creative Commons licenses created by Stanford Professor Lawrence Lessig, but in order to enforce those licenses, you still have to put notice of them online, register your copyright with the US Copyright Office and go to court.
But the Creative Commons licenses apply to what most of us would consider "works" - videos, photos, words, audio and other recognizably protected creations. Even Creative Commons, however, hasn't stretched into the world of Technology Property of avatars, electronic items such as e-money, video game possessions, text messaging and email.
Even so, do you want to protect these things? Are they really that valuable?
If you have any doubt, then just look at the thousands of hours people devote to amassing possessions in online video games, creating avatars and sending emails, just to name a few "valuables."
It's about time we started thinking about these "possessions" and "creations" and developed a way to protect them. After all, what happens to them when you die? Can you transfer them to someone else? Can you sell them?
People have and people are, all without guidance. It's just a matter of time before someone gets upset and sues.
Oh, you say that's already happened? Of course it has. As just one example in the extreme, there's the lawsuit over the guy who allegedly stole the "sex code" in Second Life, created a strikingly similar version and now underselling its original creator. Even Creative Commons recommends you don't apply that license to code - the nonprofit recommends instead that you register it directly with the US Copyright Office.
All of these questions create the need for accountants, lawyers and legislators to figure out how to handle this new Personal Information Technology Property, Web 2.0 and the yet-to-be-created technology just around the corner. So here's MIPTC's proposal, open to improvement and suggestions:
1. PITP includes all forms of personal information technology created by an individual on a computer, mobile telephone, camera or other technological device, including, but not limited to words, photographs, video, audio, text, characters (avatars), electronic possessions (money or similar representations or valuables obtained in online games), e-mail, text messages or combinations of the above in formats such as websites. PITP includes similar personal information technology not yet invented or created.
2. PITP is the property of the creator, and does not transfer ownership by virtue of its online presence. If you are the recipient of Technology Property sent to you by its creator, then you have the rights to view and retransmit it. If you are the viewer of Technology Property, then you have a license to view it. In both cases, your rights may be restricted by its creator, but in any event, you may not profit from the creator's PITP without permission or further license from the creator.
3. PITP may be patented, trademarked or copyrighted, but registration is not required to constitute PITP.
4. PITP constitutes a personal property asset, and as such may be insured, licensed, restricted, sold, transferred and otherwise willed to others or disposed of in the same manner as other personal property under state law.
5. PITP does not lose its characterization as personal property through its creator's failure to use it after creation.
6. PITP remains the personal property of its creator despite the creator's or others posting it online in any format. The creator or recipients may agree to give up the creator's ownership rights via notice in an End User License Agreement or other similar online notice. A posting by a Viewer does not operate to extinguish a creator's ownership.
7. The loss of PITP may be compensated by: (a) restoring the property to its creator; (b) and removing it from its unauthorized online location; (c) attributing the PITP to the creator on the online location; or, (d) recompense of the creator's actual loss. No future losses or prospective loss of profits may be recovered. [Author's note: to obtain future losses and expected profits, register the property with the USPTO or USCO].
So there they are. Please add your own, suggest changes and comment away. The concept could use improvement.
MIPTC's Restaurant Review: San Francisco's Ducca
MIPTC took a trip to San Francisco this weekend to present a seminar on "Ethics Issues In Environmental Law" at the CLE International California Climate Change Law Conference. On the way to our hotel on Third Street in the late evening, we walked by an opening in the giant buildings along the sidewalk that led into a grassy, park-like courtyard with art sculptures, soft chairs, clinking glasses, heaters and an outside movie.
And a view. What a view. The backdrop to this oasis in The City is the building sculpture otherwise known as the Marriott Hotel. At night, with those lights in the sky, it is a simply stunning sight.
Flanking the entrance near the Yerba Buena district are banner-sized drawings of the Doge of Venice and his wife hearkening from the times of Catherine Medici. It's your first clue of the spectacular nature of this Venetian-Italian restaurant that takes pride in its four versions of copper forks, reminiscent of a time when the rest of Europe was still licking its fingers. As historians know, forks and glassware were first used on the Venetian table. Ducca's historical acknowledgement is just a subtle signal that this restaurant is special.
And special it is.
Once inside, it's obvious Ducca (pronounced "Duke-a") is much more than a restaurant. Its trendy bar and circular lounge is THE place to see and be seen. The lounge's centerpiece, a sparkling red, glass-blown chandelier sets the mood for fun and drinks, with plenty of spice thrown in. Once past the bar, the restaurant opens with floor-to-ceiling translucent, silk-screened partitions of the doge and his wife separating the lounge from the dining room. Warmly greeted by the hostess, we first sat in the back corner of the stunningly decorated restaurant.
Then General Manager Joel Kelly made it a special evening for us. After a barnburner of a day, a delayed flight, late arrival and not much more than the wearied looks on our faces, he escorted us from our first table into Ducca's private dining room, set up a two-top and closed the glass doors, silencing the lively conversations at the nearby tables. Soft browns and tans, white linen tablecloths and impeccable service greeted us throughout the lovely evening. Oh yes, and the food, especially for us, since we eat out more than in.
MMMmmm, the food.
Heaven on plates is about the only way I can describe it. Everything, from the freshly warmed bread to the sumptuous dessert was simply delicious. Hats off to Ducca. This writer's recommendation? You haven't been to San Francisco if you haven't had drinks and dinner at Ducca.
Go here for the time of your life: Ducca, 50 Third Street, San Francisco, CA 94103. Phone: 415.977.0271. And say hi to Joel for MIPTC.
Lawyer 2 Lawyer Internet Radio Takes A Swing And Examines Baseball's Home Runs
Steroids scandals, home-run balls, suing for slander-Baseball has become a hotbed of legal activity. On this week's Lawyer 2 Lawyer, please join me and my fellow Law.com blogger and co-host Robert Ambrogi, as we discuss what is new in Baseball Law, the reputation of Major League Baseball and preferential treatment of baseball players.
Lawyer 2 Lawyer welcomes two of the world's leading experts on baseball and the law, Professor Paul Finkelman, from Albany Law School in Albany, N.Y., and Professor Howard Wasserman, Visiting Associate Professor of Law at St. Louis University School of Law and Associate Professor of Law at the Florida International University School of Law, who is also a contributor to "Sports Law Blog."
What Blogs Do Judges Read?The National Judicial College magazine, Case In Point, published an article in its Spring/Summer 2007 edition entitled: "Are You Out There? Blogging On The Bench" by Heather Singer, NJC Communications Specialist. The article features blogs that judges write, and blogs that judges read. MIPTC is honored to be on the short list of blogs in the article, which include:
Patent Infringement Cases Take Two Turns To The Right
The Federal Circuit took a swipe at patent law and changed one point of law and clarified another in the case of In Re Seagate Technology, LLC.
Back in 1983 in another patent case, the Federal Circuit established a test for willfulness (a finding that can double damage awards) that to the court sitting now sounded "akin to negligence."
Setting the bar higher, the federal court held: "[T]o establish willful infringement, a patentee must show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent. . . . The state of mind of the accused infringer is not relevant to this objective inquiry. If this threshold objective standard is satisfied, the patentee must also demonstrate that this objectively-defined risk (determined by the record developed in the infringement proceeding) was either known or so obvious that it should have been known to the accused infringer."
The pendulum swings further away from easy damage awards.
The Court also caused all patent litigation counsel, including this one, to let out a huge sigh of relief. The court ruled the attorney work-product privilege of litigation counsel cannot be examined by plaintiff's counsel when the client asserts the "advice of counsel" defense to avoid a charge of willfulness. The Tivo v. Echostar standard of allowing access to the attorney work-product of opinion counsel still stands. It's fair game to examine the backup for opinion counsel.
Just don't mix the two up. Keep the attorney who provides the opinion that the alleged patent infringement wasn't willful separate from the attorney who will defend the patent infringement case.