May It Please The Court
Quote of the Day - We don't sell so many records. When I make the album, I pay the musicians.
Anti-bootlegging Statute Stands The Test: Copyright Violations Can Be Criminal
Despite a pitch from law professors and librarians decrying limitations on the distribution of live performance recordings, the Second Circuit reversed the trial court and ruled that Congress validly enacted a law outside the scope of the Copyright Clause of the U.S. Constitution, making that distribution a crime. Likening the law to criminal trespass, the Court said the power of the Commerce Clause gives Congress the authority to grant protections to artists unlimited by time. The Copyright Clause limits that protection to the life of the author, plus seventy years.
The Defendant in the criminal case, Jean Martignon, had been charged with selling illegally recorded live performances at his store, Midnight Records in Chelsea, New York. Professors and librarians joined his arguments that because Congress could not grant time-unlimited protection to artists under the Copyright Clause, they should not be allowed to do so under the Constitution's Commerce Clause.
The government on the other hand claimed the new criminal statute, 18 U.S.C. sections 2319A(a)(1) and (3), an anti-bootlegging provisions enacted in 1994 following the Uruguay international trade talks created no such conflict. They reasoned that the Commerce Clause was much broader than the Copyright Clause and did not preclude criminalizing the distribution of live performances. The government was joined by the Association of American Publishers, Warner Music Inc. and National Academy of Recording Arts & Sciences.
It's a close call, one that likely the Supreme Court will get the chance to consider. You likely haven't heard the last of this case yet.
Big Or Small, California Has Room For All; Just Not in My Backyard
The City of Hanford, California struck a blow for businesses big and small, even though the City Council acted to ring in Big Box stores such as Wal-Mart and Ikea. As MIPTC reported before, the City passed an ordinance to prohibit small stores from certain areas of its boundaries through a unique ordinance: no store smaller than 2,500 square feet can sell furniture in a certain zone.
The area designation was challenged by owners of small furniture store, but the California Supreme Court approved of cities either restricting or allowing certain sized stores depending on its goals. In other words, cites and counties can now act to attract or repel certain types of stores, big or small, as long as they can articulate a reason for doing so.
With the niche areas of specialization, you can now expect cities to jump on this bandwagon. Just imagine the possibilities for these cities: Intercourse and Deviation in Pennsylvania, right next to Paradise, Whisky Basin and Rough and Ready, California.
Truth In Music Advertising Seeks To Ban Fake Bands
Sha-Na-Na, Shoop Dooby Do
We have legislation to prevent violations of copyrights, trademarks and patents, and we may soon have legislation to ban "impostor" music bands. That's right, while your memory of what the Drifters, Platters & the Coasters looked like, you likely remember what they sound like, and there's apparently plenty of performers who will imitate these and other bands, but tell you that they were once part of the group, even though they weren't.
There's about twelve states with such legislation already on the books, so California's a bit behind the curve. Nonetheless, Assembly Bill 702, the "Truth in Music Advertising Act" appears headed for an easy victory in the Senate, having already passed the Assembly with flying colors. Governator Schwarzenegger has indicated he would sign the legislation if passed. The Act would impose statutory penalties on violators.
But don't fret: tribute bands with at least one original member of the band who has the legal right to use the band's name would be exempted. I've always wanted to hear The Supremes again.
Hollywood, Law And The Media Collide In Spector Trial
The Associated Press claims the trial of former music mogul Phil Spector shows "the ugly side of Hollywood." Sure the products of Hollywood shine, and there's plenty of glitz and glamour about, but there can be an entirely different undercurrent, as with most things in life.
It's how you look at it and how you treat it that changes the way it behaves. Look inside and you'll see. That's the part the AP missed reporting about. But Daryn Kagan regularly gets it right, and when the ugly appears in the regular media, there's another side to see.
Can We Fix Everything? Should We?
In the words of the Eleventh Circuit in Florida, the generic answer to those questions is "No." The Sierra Club sued the USEPA for delisting seven bodies of water as impaired under the Clean Water Act.
Let's be perfectly clear here: the seven bodies of water are contaminated above several of the total maximum daily loads (TMDL) pollutant levels of the Clean Water Act, it's just that the contamination is caused by nature, not man. The opinion addresses other issues, but this one seemed to rise above the others.
June 16, 2007 Update: Despite this ruling, however, Florida is in dutch for violating the Clean Water Act.
Avvo-cadabra; It's Got Me As A Cadaver
A brand new website called Avvo purports to mathematically rank lawyers without bias, favoritism and according to "how well a lawyer could handle your legal issue." But for others who tested the site, however, it gave lawyer who is now a disbarred felon serving time in jail the same rating as two sitting US Supreme Court Justices. It's a bit troubling when a jailhouse lawyer ranks equal to those we trust to render decisions affecting the basic fabric of our Constitutional law.
Bob Ambrogi's post notes that CNET's Declan McCullagh takes the ranking system to task. The CNET reporter documents Avvo's claim that Abraham Lincoln is still licensed to practice law after 171 years and can still update his profile. McCullagh also notes it's "riddled with bizarre errors, profiles of attorneys who have been dead for more than a century and inexplicable scores in which some felons received better ratings than law school deans and internationally renowned litigators."
Ambrogi himself is no fan: "Supreme Court Justices Ruth Bader Ginsburg and Samuel Alito each receive overall scores of 6.5 out of 10 and ratings for experience and trustworthiness of three stars out of five. By contrast, Avvo CEO Mark Britton is given a score of 8 out of 10 and experience and trustworthiness ratings of four out of five. Are we to conclude, then, that Mr. Britton would be a better choice of lawyer than either Justice Ginsburg or Justice Alito? Avvo board member and Stanford Law professor Deborah Rhode is rated a perfect 10 and given five stars for experience and trustworthiness. Harvard Law Dean Elena Kagan earns only a 6.4 rating and three stars for experience and trustworthiness. Should Prof. Rhode take over Dean Kagan's job?," Ambrogi postulates. How about the 6.5 rating Stanford Law Dean Kathleen Sullivan received after flunking the California Bar the first time? Statistically, you would think she's less qualified than the "good" rating she received.
As for me, what do I know? According to the site, I'm deceased after practicing law for some 56 years, which is quite a feat given that I'm really only 50, and actually graduated law school just 20 years ago.
And as for the ranking system, I've got at least two different ratings, one for practicing in Washington (where I was admitted to practice two years ago), and another for California (where I was admitted in 1988) (see the last link). I'm also admitted in Iowa and Massachusetts, but not ranked in either state because Avvo hasn't gotten that far yet. After posting this commentary, I will do what I can to straighten out with Avvo the issue of my alleged death, especially since I still have my birth certificate and haven't yet collected my death certificate, at least as far as I know.
But if I'm dead as I write this, then what does that make Avvo? A ranking system rife with errors and of questionable benefit, in this writer's humble opinion.
But perhaps there's hope yet: at least Avvo recognizes that Abraham Lincoln gave the Gettysburg Address (listed under his "speaking engagements"), and wrote the Emancipation Proclamation and the Thirteenth Amendment (listed under his "publications"). Unfortunately, the site doesn't report when Lincoln spoke (1863) and published the Proclamation (1862). The Constitutional Amendment was actually written, however, in 1863 by two Senators and a Congressman, not Lincoln - points missing from his Avvo profile.
Oh. More errors. Oops.
6/15/07 Update: Avvo has been sued by a Seattle criminal defense lawyer, John Henry Browne, over the ratings. He was a guest on this week's Lawyer 2 Lawyer podcast, which will be posted on Monday, June 18, 2007. Despite numerous invitations, Avvo refused to participate in the podcast.
As regular readers know, MIPTC is fairy fastidious in not posting about other lawyers or judges' behavior. Every once in a while, however, there's just one you can't resist.
The poetic Texas judge has struck again with this poem about a dispute between two lawyers in a deposition who couldn't solve their problem on their own and asked the Court for help. Click on that last link for some judicial humor and guidance. A tip of the hat goes to Robin Gotshall of Seyfarth Shaw's Boston office for forwarding it to a friend, who forwarded it to me.
Lawyer 2 Lawyer Internet Radio Covers The TB Crisis
A 31-year-old personal injury lawyer out of Atlanta, Andrew Speaker, stirred up an international public health emergency when he traveled to Europe after being diagnosed with a drug resistant form of tuberculosis. On Lawyer 2 Lawyer, we will talk about the legal liability of this specific case. What can happen to Andrew Speaker legally? Can he be disbarred? As a lawyer, should he have known better? We will also discuss the doctors' liability. Did they give him permission to fly? Are they at fault?
Join me as I get some insight from our guests: Professor Stephen Bainbridge, William D. Warren Professor of Law at UCLA and Dr. Robert Klitzman, co-founder of the Columbia University Center for Bioethics and an Associate Professor of Clinical Psychiatry at the University's College of Physicians and Surgeons. Please join us!