The Courthouse Security Kabuki Dance

I’m no stranger to courthouses. About three times a week, more or less, I submit to the ritual security screening that protects our citizens while exercising their right of access to the courts. (In reality, only the judges are protected, because everyone else is vulnerable to threats of all kinds while standing in line to get in—but that’s a post for another day.)

Each courthouse has a different dance they make you do before you’re given the privilege of entry. Some courthouses, I have to take off my shoes. Some make me take my keys out of my briefcase and run them separately. Some make you take off your belts. Some have relaxed screening for lawyers, some don’t.

Hillsborough County is different every time I go. Yesterday was no exception. I ran my TSA-friendly laptop bag through the x-ray, put my phone and keys in separate bins, and walked through the metal detector. No beep—I’m pretty good at knowing what sets ‘em off—and the guard on the other side asked me for my bar card. I assumed he needed to know if I was a lawyer so he could decide if he was going to make me take off my belt—the one I had just successful worn through the metal detector—and send it through the X-ray machine. So I took out my wallet to get my bar card. The guard said:

Oh, you have a wallet? You’ll need to send that through the metal detector.

I needed to get to my hearing quickly, so I didn’t argue then about this flagrantly stupid rule. Now, I will.

Wallets are not a security threat.

Making me take my wallet out of my pocket and running it through the metal detector contributes exactly zero to making the courthouse more secure. Instead, it causes confusion and delay and creates a very real risk that someone else might poach my wallet before I have a chance to retrieve it. Here’s the threat model that x-raying wallets would prevent:

1. The threat must be made of a material that does not set off metal detectors.
2. The threat must be small enough to fit in my wallet.
3. The threat must be so large that I could not conceal it anywhere else on my person while I walk through the metal detector.

That threat, I respectfully submit to you, does not exist. If I could walk it through the metal detector in my wallet, I could just keep it in my pocket, or anywhere else on my person, and do the same, while the security staff were distracted with the image of my wallet on the x-ray screen. I can’t even imagine what might fit in my wallet that could be such a concern—a tiny ceramic knife? Small amounts of explosives? A cyanide capsule? Why the hell would I put any of these in a wallet, anyway?

The rule is stupid. It contributes nothing, and actually makes us less secure by distracting security staff and exposing us to potential theft. But it creates the illusion of careful screening, so it persists. And I cannot imagine why it was imposed in the first place.

( Photo Source / Photo Rights )

What will Justice Kagan wear?

The famous David Lat points to a Slate article asking whether the newly-confirmed Justice Kagan will wear the frilly “jabot” neckpiece favored by other female justices O’Connor and Ginsburg, or if she’ll go the route Justice Sotomayor has taken and just pick discreet necklines under the robes.

Did you know that federal judges can wear anything they want? Slate notes:

U.S. Federal judges, including Supreme Court justices, can wear pretty much anything they like—they can even go in jeans and t-shirts—but the simple black robe has been de rigueur for those on the federal bench since the early 19th century.

Of course, given lifetime appointment during times of good behavior, there would be no legal consequence whatsoever if a judge chose to wear something other than robes – but they might subject themselves to critical opinions of the public, the bar, or other members of the judiciary. Former Chief Justice Rehnquist wore four stripes on the sleeves of his robe, inspired by a Gilbert & Sullivan opera, and there is perhaps no federal judge more famous for choice judicial attire. It earned him no small amount of scorn.

It seems that state court judges in Florida also have no formal requirement regarding judicial garb – although most don the traditional black robes, I have known at least one judge who wears a blue robe on the bench, and another who wears jeans under his robes. Unlike federal judges, state court judges in Florida are retained by election, so anyone who strays too far from tradition invites criticism and, in extreme cases, loss at the ballot box. However, I’m not aware of any Florida judge who’s ever lost an election due to choice of clothing.

Once in a very great while, a lawyer gets to be part of something amazing. Last week, I got my turn, when I saw a judge take a complete 180-degree reversal of himself and throw out his own order granting a foreclosure sale, and pronounce his deep-rooted concern that many of the foreclosures granted by Florida courts in the past few years were probably illegal.

Some of the highlights:

• when the judge admits that he’s “pummeling” the plaintiff’s lawyer
• when the plaintiff’s lawyer admits he doesn’t even have a copy of the motion we’re arguing
• when the judge calls for an investigation whether many of the people who act as witnesses for the banks should be charged with perjury

Days like this make up for all the days that aren’t like this.

Yesterday afternoon, sometime between 3 and 4pm, I tried to pull up the Florida Bar website, which was working fine – albeit with its usual lack of speed – earlier in the day.

What came up was a typical domain-squatter page that you’ve seen on any domain that was once used but let go by the owner.

So, what happened? Did someone forget to pay for the registration over there? Did they get hacked? Or did they abandon the site?

Web site management, ostrich-style

I called over to the Bar yesterday to alert them to the problem. The pleasant lady who answered the phone sweetly assured me that there was no problem with the web site. I told her that I couldn’t access it and if anyone else reported it, she might want to have someone check on it.

So today, almost 20 hours later, still no progress. Just another example of how the Florida Bar doesn’t understand technology .

UPDATE:

Others have noticed this too. Here are some of today’s search term hits:

• florida bar website
• florida bar website down
• florida bar website gets hacked
• florida bar hacked
• florida bar website hacked
• florida bar web site hack
• florida bar website problems

UPDATE 2:

The Florida Bar website – which I can now see – has the following message posted:

Access to our Web site is currently being affected by an incorrect DNS record on the Internet. The issue has been resolved, however, it is possible that access problems may continue for up to 24 hours. We apologize for any inconvenience.

(Thanks, Tiff.)

The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day.

Citizens United v. FEC 558 U. S. — (2010) [PDF]

The Supreme Court’s decision striking many of the regulations of McCain-Feingold has been harshly criticized by proponents of campaign finance restrictions. Some have even called it the “worst decision since Dred Scott.” But when you actually read it… well, it’s pretty well-reasoned.

The part of the decision that has drawn the sharpest criticism is, ironically, the least controversial from a legal standpoint: the notion that corporations are “persons” under our constitution, with constitutional rights that the government may not infringe. This idea, controversial on this day the opinion was released, has been established as a matter of law since at least 1885. (I was too lazy to search beyond that.)

So why the outrage? Corporations are easy to hate. “Money in politics” is easy to hate. For some people, any conservative legal thought is easy to hate. (Free speech for me, but not for thee…) The ends – reducing the influence of the wealthy on political debate – justifies the means – legally prohibiting core political speech.

Now, at least for a little while, speech can breathe a little bit freer.

Note: this is not legal advice. This is my opinion, nothing more. If you want legal advice, hire a lawyer.

How to piss people off with a legal argument

There are no atheists in a foxhole, it’s been said, and there are apparently no agnostics when it comes to the potential application of the GNU General Public License (GPL) to WordPress themes. My last post, which analyzes the matter from the perspective of copyright law (as it must) generated quite a bit of debate even though it’s been raging for far longer than I’ve been following it. I concluded that, under our current copyright laws, WordPress themes are not “derivative works” and therefore are NOT automatically covered by the GPL (unless, of course, the theme author deliberately chooses to release under the GPL).

And that pissed some people off, and pleased a few others. One even accused me of wanting the powers-that-be to “bless” my decision to go with a premium WordPress theme. (Um, no.) Others encouraged the sides to settle the matter in court. Some simply waved their hands and said, “There is no debate,” as if they weren’t debating by leaving their comment.

Whatever.

Your opinions don’t matter

None of your opinions matter… and neither does mine. Derivative work, independent creation, something in between… it doesn’t matter in the end. Why not?

Because whether the GPL applies to WordPress themes or not… whether they are derivative works or not… whether they are part of a “combined program” (as the Software Freedom Law Center advocates) or not, the WordPress GPL can’t stop you from developing, distributing, making money from, and asserting copyright in, WordPress themes.

Because the Fair Use Doctrine protects you when you do.

How can Fair Use apply to premium WordPress themes?

First, it’s important to remember that the GPL is a copyright license: it allows people other than the author the right to copy, distribute, and modify a work – in this case, a piece of software – that otherwise would be restricted to the author only under copyright law.

That means that anyone who already has the right to do those things under copyright law need not worry about the restrictions of the license. The terms of the license only apply to uses which copyright law reserves to the author. And if a use qualifies as “fair use“, then copyright law expressly allows it without a license.

How does use of a work qualify as “fair use”? The law sets out four factors to consider:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

17 U.S.C. § 107.

Each factor weighs separately in the analysis.

Purpose of the use

As to the first factor, copying for a commercial purpose “weighs against a finding of fair use.” Sega Enterprises Ltd. v. Accolade, Inc., 977 F. 2d 1510, 1523 – (9th Cir. 1992), citing Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 562, 105 S.Ct. 2218, 2231, 85 L.Ed.2d 588 (1985). However, “the presumption of unfairness that arises in such cases can be rebutted by the characteristics of a particular commercial use.” Sega, at 1523. Such factors include whether or not the use complies with the “primary objective of copyright law [which] is not to reward the labor of authors but ‘[t]o promote the Progress of Science and useful Arts.’” Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348, 111 S.Ct. 1282, 1290, 113 L.Ed.2d 358 (1991).

In other words, commercial use is presumed to be unfair, but that presumption may vanish if the use also promotes advancement of science and art. Publication of premium WordPress themes, by definition, is commercial, but in many cases, arguably promotes that advancement of science and art when they help produce web pages that are more artistic or which function, in some way, better. Almost all WordPress themes are created with this intent, and would be difficult to sell as premium themes if they miss the mark.

Tha analysis finds support in the Sega case:

We further note that we are free to consider the public benefit resulting from a particular use notwithstanding the fact that the alleged infringer may gain commercially. Public benefit need not be direct or tangible, but may arise because the challenged use serves a public interest…. In the case before us, Accolade’s identification of the functional requirements for Genesis compatibility has led to an increase in the number of independently designed video game programs offered for use with the Genesis console. It is precisely this growth in creative expression, based on the dissemination of other creative works and the unprotected ideas contained in those works, that the Copyright Act was intended to promote.

Sega at 1523. (citations omitted) Like in the Sega case, WordPress themes promote a “growth in creative expression” by making WordPress easier to use or more aesthetically pleasing. I think a court would find this factor in favor of fair use in the case of WordPress themes. But just for sake of argument, let’s tip the balance on factor one slightly against fair use for now.

Nature of the work

For the second factor, the “nature of the copyrighted work,” we look again to the Sega case, which states:

The second statutory factor, the nature of the copyrighted work, reflects the fact that not all copyrighted works are entitled to the same level of protection. The protection established by the Copyright Act for original works of authorship does not extend to the ideas underlying a work or to the functional or factual aspects of the work.

Sega at 1524. (citations omitted) And, “To the extent that a work is functional or factual, it may be copied.” Because computer programs are largely functional, “many aspects” of computer programs are not even protected by copyright. Sega at 1525.

To be fair, the “nature of the work” analysis can be much more complicated than I can discuss here, but generally speaking, more protection will be provided towards fictional, fantasy, and entertainment works, with less protection being given towards largely functional works, and none at all to some types of works that are purely functional. As a computer program, WordPress is highly functional in nature, and therefore enjoys less protection than pure works of imagination. Based on that sliding scale, it is fair to tilt the second factor in favor of fair use where the nature of the work is a content-management system for web pages, such as WordPress.

Amount and substance of the copying

The third factor is the “amount and substantiality of the portion used in relation to the copyrighted work.” In other words, how much of the protected work was used, and how important to the work was that portion? Both the quantity and the quality of the copies portion matter. Salinger v. Random House, Inc., 811 F. 2d 90 (2d Cir. 1987)(where copy was “essentially the heart” of a copyrighted work, factor three weighed against fair use).

In the case of WordPress themes, this factor weighs heavily in favor of a finding of fair use. No theme that I’ve ever seen incorporates any actual code from WordPress; instead, they rely on function calls to the main program, asking it to send data back to the program that comprises the theme. In other words, the only portion of WordPress “copied” are the names of the functions themselves. As a percentage of the total amount of code in WordPress itself, this is simply a tiny amount. Furthermore, the names of the functions are, in themselves, hardly the core part of the expression from a qualitative nature. Both from a quantity perspective and a quality perspective, there is almost no significant copying of any protected WordPress code. Factor three, then, weighs in favor of fair use.

Effect on the potential market

The fourth factor, though, is the real clincher that leads me to believe the distribution of premium WordPress themes is fair use of any protected WordPress works. The “market effect” test has been deemed by our Supreme Court to be “undoubtedly the single most important element of fair use.” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 556-57, 105 S.Ct. 2218, 2233-34 (1985). The “market effect” test determines whether the alleged copyright infringement would somehow depress or diminish the ability of the author of the protected work to market that protected work.

In this case, the answer is a head-slapping “Of course not!” It is axiomatic that a WordPress theme cannot function unless there is a copy of WordPress running to support it; in fact, this is one of the arguments that GPL proponents make to support their case that the themes are derivative works. The “copying” by theme distributors can never displace a single copy of WordPress, so there is no negative effect on any potential market; and in fact, by enhancing the aesthetic and functional value of WordPress, themes promote more widespread use of the underlying software. Developers of WordPress themes increase the market for WordPress, not depress it. Increasing WordPress market share is in the theme developers’ best interest, for more WordPress users means more potential customers for premium themes.

Because the impact of premium themes on WordPress market share is at worst neutral, and in all likelihood premium themes substantially bolster the market share of WordPress with respect to its competitors, the fourth factor weighs heavily in favor of a finding of fair use. As the “most important element” of fair use, this finding cannot be understated.

What it all means: Blow it out your GPL

Of the four factors of fair use, two weigh heavily for fair use, one slightly in favor, and the other we allowed to tilt slightly against even though it could easily go in favor of fair use. To be sure, changing the underlying facts could change the outcome of any individual factor, but based on the facts as I understand them, development and distribution of WordPress themes, to the extent they engage in any “copying” or derivation from WordPress code, are resoundingly fair use of that code. And if they are fair use, then federal copyright law expressly allows them to be made, copied, and distributed with no regard whatsoever to the GPL or any other license that may apply.

So all the hemming and hawing about whether themes area derivative work, or “should be” a derivative work, is completely irrelevant. Because the GPL need not apply in either case.

Note:

This is not legal advice. This is my opinion, nothing more. If you want legal advice, hire a lawyer.

Why aren’t WordPress themes automatically covered by the GPL?

There’s been a firestorm brewing in the relatively small world of WordPress premium theme designers, after WordPress founder Matt Mullenweg broadly asserted that themes built to run on the WordPress platform – and by implication, plugins and anything else that hooks into the WordPress system – are covered by the GPL.

This is important, because if Matt is correct, then anyone who gets a copy of a premium theme then has the right to freely distribute it or modify it virtually without restriction (expect, of course, those restrictions found in the GPL itself). Understandably, even though some voluntarily release their themes under the GPL, many premium theme designers object to having their code distributed for free.

Matt, who is an outspoken proponent of open-source software, has explained that designers can still make money off GPL code by providing support and other valuable resources to users of that code. And he’s right – that model exists, and has been shown to work for some.

Are premium theme designers “evil”?

But he also goes so far as to call non-GPL premium WordPress themes “evil” – naming Chris Pearson’s Thesis as one such example. Now, I own a Thesis developer’s license and run several sites on the theme. I was happy to pay for it and would do so again. I also know Matt and have considered him a friend for several years now. I commend him for his support of open software and for the impact he’s had on the weblog community.

So it’s tough to say this: Matt, you’re wrong. Not only are these developers not “evil,” they provide a definite benefit to the community. And perhaps more important, the WordPress GPL does not, in most cases, require them to release their own themes or plugins under the GPL.

The argument for an expansive GPL

Here’s the argument for applying the GPL to all WordPress themes:

The template is loaded via the include() function. Its contents are combined with the WordPress code in memory to be processed by PHP along with (and completely indistinguishable from) the rest of WordPress. The PHP code consists largely of calls to WordPress functions and sparse, minimal logic to control which WordPress functions are accessed and how many times they will be called. They are derivative of WordPress because every part of them is determined by the content of the WordPress functions they call. As works of authorship, they are designed only to be combined with WordPress into a larger work.

In other words, the code created by theme developers, because it works together with WordPress code (and in most cases, cannot function without it) is a “derivative work” of WordPress under copyright law and therefore falls within the scope of the GPL. (The GPL, as a copyright-based license, applies only to the original work and those works that derive from it.) At least, that’s the argument.

The counter-argument to an expansive GPL

But is it enough to say that a theme calls to WordPress functions or that it is somehow “combined with WordPress code in memory”? Does that make it a derivative, and therefore covered, work under the law and the GPL?

There are plenty of reasons to disagree with the expansive GPL view expressed above. First and foremost, it’s just not enough to say that themes running on top of, and using function calls from, a piece of software are “derivative” of that software. If that were the case, then any software application would be a derivative work of the operating system it runs on – such as Windows, Linux, or OS X – which in turn would be a derivative work of the software hard-coded into the chips running the computer. For that is the way all software works, down to the bare iron – it sits on top of, and makes function calls to, the software layer beneath it, until to get down to the silicon pathways in the chip itself. No software could run without those lower layers, and nothing is truly independent of them. But “dependent” and “derivative” are not the same thing.

Instead, copyright law takes a very pragmatic approach to determine what constitutes a derivative work.

The alleged derivative must “physically incorporate a portion of a copyrighted work… [or] supplant demand for a component of that work.”

In the case of Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 964 F. 2d 965 (9th Cir. 1992), a federal appellate court considered that very issue. Galoob manufactured a “cheater” cartridge that plugged into Nintendo games, between the game cartridge and the game unit itself, and allowed the player to change the game’s parameters – for example, players could give themselves unlimited lives using Galoob’s device. Nintendo sued Galoob, claiming that the devices violated Nintendo’s copyright in the games as a derivative work of the games.

The Galoob court rejected Nintendo’s argument. In order to be considered a derivative work, the alleged derivative must “physically incorporate a portion of a copyrighted work… [or] supplant demand for a component of that work.” Galoob at 969. Finding that Galoob’s device did neither, the court determined that there was no derivative work.

An important part of the court’s analysis was that “technology often advances by improvement rather than replacement.” Id. The court also noted that software often depends on other software to function:

Some time ago, for example, computer companies began marketing spell-checkers that operate within existing word processors by signalling the writer when a word is misspelled. These applications, as well as countless others, could not be produced and marketed if courts were to conclude that the word processor and spell-checker combination is a derivative work based on the word processor alone.

Id. Applying that theory to the Galoob device, the court concluded:

The Game Genie is useless by itself, it can only enhance, and cannot duplicate or recaste, [sic] a Nintendo game’s output. It does not contain or produce a Nintendo game’s output in some concrete or permanent form, nor does it supplant demand for Nintendo game cartridges. Such innovations rarely will constitute infringing derivative works under the Copyright Act.

Using that rationale, the question of whether WordPress themes are “derivative” of WordPress itself becomes more clear.

1. Does a theme, rather than simply calling a WP function, incorporate actual code from WordPress?
2. Does it somehow supplant the demand for the WordPress software itself?

If the answer to either of those questions is “yes,” then the work is probably derivative, and the GPL probably applies. If not, then even a theme or plugin that entirely dependens on WordPress to run at all, or simply improves WordPress in some way, would not be a derivative work and the GPL would not apply. For the vast majority of themes I’ve seen, the GPL would not apply because the theme is not, in my opinion, a derivative work. (In fact, if any one thing “incorporates” another, it’s most likely WordPress incorporating the theme, by use of the PHP include() call, rather than the other way around.)

Should the GPL apply to premium WordPress themes?

Matt’s own experience with WordPress is a very convincing argument that it is possible to change the world, or even just make a living, by writing, distributing, and supporting GPL-based software. There are many premium theme designers – promoted and catalogued by WordPress – who choose to apply to GPL to their own labors. But those who choose not to? Not evil – at least not for that reason.

It’s great to talk about open source software as “free” and speak of the GPL – as Matt does – as a “Bill of Rights” – but what Matt seeks to do would reduce freedom by expanding copyright restrictions to non-derivative – and therefore legally independent – works . At its core, the GPL is simply a fancy way of controlling other people’s work through the imposition of copyright restrictions. Those who seek to extend the GPL beyond the bounds allowed by copyright law, do not promote freedom but instead take freedom away.

Update: What WordPress itself says about derivative works and copyright law

I should have done this in the main article, but here’s what the GPL that came with your copy of WordPress says about the issue:

a “work based on the Program” means either the Program or any derivative work under copyright law: that is to say, a work containing the Program or a portion of it, either verbatim or with modifications and/or translated into another language.

(Emphasis added.) In other words:

1. Copyright law controls the definition of what constitutes a “derivative work” (and therefore, a covered work); and,
2. The GPL expressly invokes the standard embraced by the Galoob court, namely, that some part of the original work must be contained in another work in order for that work to be considered derivative.

I knew that WordPress itself was covered by the GPL. What I didn’t know was that themes, even commercial themes, built to run on WordPress, also fall under the GPL, according to some GPL experts.

In this vid, Matt Mullenweg talks about the benefits of the GPL at some length, even going so far as to call those commercial theme vendors who don’t release their code under the GPL as “evil.” (Looking for some commercial-grade but GPL-released themes? Find some here.)

Now, I’ve been using a commerical, non-GPL theme for this and some of the other blogs I maintain – the very slick Thesis theme – but I hardly consider it “evil” that Pearson, et al. maintain a non-GPL license regime. They might arguably be in violation of the WordPress GPL, but there’s nothing inherently “evil” about their product or what they’ve chosen to do with it. (Notably, Pearson offers a number of free themes for download at his site, including a couple which helped cement his reputation as a talented WP theme designer.)

How has the legislature screwed Florida homeowners yet again?

In what can only be called a blunder of colossal proportions, the Florida legislature has imposed new fees on Florida foreclosure defendants that make it all but impossible for them to fight back against lenders who commit fraud, ignore federal lending regulations, or commit any other kind of wrongdoing.

The Florida Foreclosure Fraud weblog has the details, but here’s the nutshell version. Any foreclosure defendants who wants to file a counterclaim against a dirty lender – one who commits fraud, packs the loan with unlawful fees, fails to make all the required disclosures, or breaches the agreement with the borrower in any way – those homeowners have to pay a $1,900 filing fee before they can proceed with their claim.

Shutting the courthouse door on foreclosure fraud victims

You read that correctly – one thousand, nine hundred dollars. That doesn’t include attorney’s fees or any other cost of filing suit – that’s just the fee you pay to the court for the privilege of sticking the papers in the court file. Those who have fallen victim to foreclosure fraud – the ones most likely to have the kind of counterclaims that would be affected – are the least likely to have that kind of cash sitting around, waiting for the government’s outstretched palm. And if you don’t have the money? No pay, no play.

The lawmakers’ slush fund

To make matters worse, the money doesn’t go to the court system, to help hire more staff to offset the record glut of foreclosure cases. It goes into the state “general fund” – meaning that lawmakers can spend the money on just about anything they want. It’s basically a giant slush fund, built on the backs of the people who can least afford it.

To read the rest of the story, or to see the newly juiced-up fee schedule for non-foreclosure cases, head over to the Florida Foreclosure Fraud weblog.

(Photo source ) ( Photo license )

No takebacks

Last month, the official White House photo stream on Flickr switched from a Creative Commons attribution license to a brand-new “U.S. Government Work license” that Flickr created specially for this photostream, but which probably applies to almost all photos contributed by the federal government.

Why create a brand-new “license”? Because works of the U.S. Government are not subject to copyright. The new “license,” in reality, is simply an acknowledgement that the work is part of the public domain.

You cannot keep what you do not have.

But there’s a small problem. In the description for each photo, the following text appears:

This official White House photograph is being made available for publication by news organizations and/or for personal use printing by the subject(s) of the photograph. The photograph may not be manipulated in any way or used in materials, advertisements, products, or promotions that in any way suggest approval or endorsement of the President, the First Family, or the White House.

That’s all well and good, except that no one has the right to impose those restrictions. The work is in the public domain. No one may restrict its use in any way. What happens is you use photographs from the official photostream in a way that violates the supposed “terms” imposed in the comments?

Not a darn thing.

Of course, if you use them to commit fraud or some other crime, there may be consequences for that. But otherwise, you’re free to use these photos in any way just as if you took them yourself. So find yourself a picture like the one I’ve got here… and enjoy.

UPDATE

Welcome to the party, Slashdot and Instapundit.

Write for a blog long enough, it’s bound to happen. You see a link in your referrer logs, find something on Google, get an email from a reader… you follow the link, and there it is: your hard work, spread across someone else’s page, used as bait for ad revenue or something worse.

David Risley asks the question: How do you deal with web sites that steal your content?

Personally, I’ve dealt with it in two ways. First, I contact the offender directly and ask them to take the post down. This usually works, because anyone who’s copied my work knows what I do for a living. If I can’t contact the webmaster, I next contact the web host.

So far, problem solved, every time.

Attorney General Bill McCollum clearly does not want to restrict Florida attorneys from helping Florida homeowners fight their foreclosures, and his recent letter to Florida Bar President Jay White may offer some cover to those attorneys who do.

NOTE: I’m writing more about this at the Florida Foreclosure Fraud weblog.

Florida’s new Foreclosure Rescue Fraud law

Last week, Florida Governor Charlie Crist signed a new law which imposes broad-ranging restrictions on so-called “foreclosure rescue” service providers. The well-intentioned bill is meant to curb the worst abuses by bottom-feeding predators who use foreclosure as an opportunity to bilk money and property out of desperate homeowners. But some unintended consequences of the bill may leave homeowners out of luck when it comes to seeking legal representation.

Some of the protections in the new law will prevent con-artists from “rescuing” homeowners by signing them into predatory loans, getting them to sign over their property unwittingly, or just pocketing a fee to negotiate with the lender and then disappearing. Unfortunately, the broad scope of the law also means it applies some strict new regulations on Florida lawyers who are actually trying to help these homeowners – regulations which may prevent these homeowners from having access to any lawyer at all.

Scope of the new law

The new law, Fla. Stat. § 501.1377, [pdf] applies to all “foreclosure-rescue consultants” who provide homeowners with “foreclosure-related rescue services.” Those services include any service related to “Stopping, avoiding, or delaying foreclosure proceedings concerning residential real property” or “Curing or otherwise addressing a default or failure to timely pay with respect to a residential mortgage loan obligation.”

This broad definition appears to include lawyers who would represent homeowners defending a foreclosure suit; it may also encompass bankruptcy attorneys who help homeowners file for bankruptcy during foreclosure proceedings.

Disclosure and cancellation requirements

Among the requirements in the new law, these attorneys who may fall within the definition of “foreclosure-rescue consultants” would have to provide their prospective clients with written agreements containing certain disclosures – in uppercase type, no less – and also state “the exact nature and specific detail of each service to be provided,” and “the total amount and terms of charges to be paid by the homeowner for the services.” The “consultant” must also provide a copy of the agreement to the homeowner “not less than 1 business day before the homeowner is to sign the agreement.” The homeowner also has a three-day right to cancel the agreement after signing it.

The written disclosures and cancellation rights are minor impediments, but still, they present problems for the lawyer who might represent a foreclosure defendant. First, without spending time reviewing the documents, it may not be possible to determine in advance the “exact nature” of the services to be provided. And for lawyers who might bill hourly, it is not at all possible to calculate the total charges to be paid until the work is actually done. It would be difficult, if not impossible, for many lawyers to take on new clients if they had to comply with these requirements.

Also, the one-day advance copy requirements and the three-day cancellation requirement, effectively mean that any homeowner facing an immediate deadline may not be allowed to hire a lawyer. Have a court deadline tomorrow? Sorry, you can’t hire a lawyer until a full business day has passed. Have a court deadline in two days? Sorry, but most lawyers won’t enter a case until after the three-day cancellation notice has passed. (Otherwise, the court might not let them out of the case if the client cancels.) A homeowner who needs a lawyer in a hurry will have a hard time hiring someone before time runs out.

Deferred fee requirements

Besides the written agreement, the new law also forbids the consultant from asking for or accepting any fees from the homeowner “before completing or performing all services contained in the agreement for foreclosure-related rescue services.” What does this mean? It means that a lawyer who takes on a foreclosure defense case can’t even ask for a retainer – a deposit – until after he has already done all the work on the case, which may be months or even years later. It also seems to suggest that a bankruptcy lawyer cannot ask for or accept any fee from their client until after the bankruptcy case has concluded – which, my colleagues in that field tell me, means that bankruptcy attorneys effectively waive their right to collect any fees, whatsoever.

What effect would this have on the willingness or ability of lawyers to represent homeowners in foreclosure cases? For most, it means they can’t. To defer a fee on a foreclosure defense until the end of a case not only means they have to wait to get paid, in most cases it means they won’t get paid at all. Once a lawyer has provided his services, he can’t take them back – he has no leverage to persuade a cash-strapped homeowner to pay the bill for services that have already been provided. Faced with the choice of taking a long-deferred fee that might never be received, or refusing to take the case, most lawyers will refuse the case. And then the homeowner has to face foreclosure alone. This is helping?

Aiming at the wrong target

And the worst part is, there’s no need at all to apply these restrictions to lawyers who represent foreclosure defendants. Attorneys who, in good faith, take on these cases and litigate them can provide an enormous benefit to their clients. The rare attorney who takes a fee, pockets it, and disappears, is subject to the strict discipline of the Florida Bar. And, despite the rash of foreclosure rescue scams in Florida and across the nation, I know of none that involve lawyers representing homeowners in court proceedings. By lumping these lawyers in with everyone else, the legislature tried to fix a problem that doesn’t exist.

Is there any hope for the future?

I hope I’m wrong about the scope of the bill, but I’m afraid that it means exactly what I think it means. No doubt the consumer law bar will eventually figure out a way to modify these restrictions, but until then, homeowners seeking legal help are getting the short end of the legislative stick.

CONTACT: Those wishing to reach me about this article can use this web form to send e-mail.

UPDATE: Jacksonville bankruptcy attorney Chip Parker sees this bill the same way.

Having trouble selling your home in this sagging real estate market? Clementina Marie Giovannetti of Ocala, Florida, apparently was, too.

So she’s decided to give her $1.25 million mansion away.

Crazy? Don’t answer yet.

She’s having a contest, and the submission of the winning “Pet Lover” essay gets the house. Contestants have to write a 300-word essay and submit a “4×6 color photograph of the pet” in question, and… a $200 entry fee.

Still, $200 for a shot at winning a mansion? Could be a great deal. But here’s the catch. The contest only goes on if 6250 people enter. If not, she has the right to cancel the contest and return everyone’s application fees (minus a $20 “administrative fee” per Entrant.)

So let’s do the math. 6,250 entrants at $200 each yields – $1.25 million. (Hey! What a coincidence!) If the contest goes bust and she gets, say, only a thousand entrants, cancels the contest, and keeps the $20 administrative fee, that’s $20,000 (minus legal fees and postage, presumably.) And no matter what, this author gets a hell of a lot of publicity because she’s posted the contest information on her main web site where she hawks all her books.

Win-win-win, if you’re Giovannetti or her lawyer. I wonder if they came up with the idea, or, as seems more likely, they adapted it from something they found somewhere else.

I wrote almost exactly a year ago about the lawsuit against Turnitin.com filed by several Virginia high school students, alleging that the anti-plagiarism service violated the students’ intellectual property rights. Then, I said, “Does Turnitin have a valid defense? There are two likely possibilities: fair use, and license.” My predictions (unlike, say, my stock picks) have turned out to be eerily prescient.

Andy Carvin reports today that the students have lost their suit, when U.S. District Court Judge Claude Hilton (Eastern District of Virginia) granted summary judgment to the defendants [PDF document] on the copyright claims of the students.

Technically, I was wrong about the license issue: to be precise, the court found that the “users” (i.e., the students) had agreed to a “click-wrap” contract which waived all liability of any kind by the defendants. (Note that the school required the students to do so.) So, not an express license to use the work, but a prohibitive contractual provision nonetheless. The court relied on one argument, though, which I think could be subject to attack on appeal: in order to enforce the contract, the court had to find that the students got some “benefit” out of the contract — in this case, the fact that they would otherwise have gotten a failing grade from the school. I’m not sure that the school’s requirement that the students sign up for the “service” is the same as receiving a “benefit” of the service. This court also seemed unconcerned that this school – a public school – required the students to sign up for the “service,” except to say that the students’ redress would be against the school, not Turnitin.com.

I did say that fair use would be a problem for the students to overcome, and i was spot-on about that. The judge took a pretty thorough look at the fair use analysis (using the four factors I mentioned last time) and found that the copying in this case was fair use. Predictably, the court focused – as most do – on the fourth factor, impact on the marketability of the work. Finding that Turnitin.com’s use of the works had effectively no impact on the prospective market for the students’ papers (aided in part by the students’ own concessions that there was no real market for them) was tantamount to finding for the defendants on the question of fair use.

So, while it’s a disappointing result, the court’s decision would probably be difficult to overturn on appeal. Maybe it’s time to take up the court’s suggestion that the students seek redress against the school district for compelling them to surrender their intellectual property rights in their work. I’m just glad I’m not the lawyer who would have to argue that case.

If you run a business, and you have a website, you may or may not know whether disabled users – the blind, the mobility-impaired, and others – can access your web site with their helper technology. And, from a lawyer’s perspective, even more important, you may not know whether you are violating federal law if you fail to make your web site accessible to those disabled users.

Targeting Your Web Site: Accessibility Litigation Update

If you’re in Austin attending the South by Southwest Interactive conference this week, you’re in luck. I, along with my co-panelist Anitra Pavka, will explain how recent cases in the U.S. have changed the way disability law applies to private business websites, the potential pitfalls of violating the law, and some measures you can take immediately to make sure that your website is accessible for all users and fully complies with legal accessibility requirements.

(Room C at the Austin Convention Center, Level 1, 5:00pm, Monday March 10, 2008)

Anyone who works with the Federal courts will be familiar with PACER, the federal judiciary’s electronic public records system. The great thing about PACER is that any current (I’m not sure how many years are encompassed) court case is in the system, allowing the public to access any document filed in any federal court case. The not-so-great side of PACER is the eight cents per page fee charged for each record. Eight cents per page is pretty reasonable, compared to most comparable systems, but it can really add up when you consider the number of pages in a typical court document (my local court rules allow 25 pages for a brief, for example) and the number of documents in a given case. And we know the money’s adding up – apparently, the judiciary has noted a “significant accumulation of unobligated balances” (hows that for a euphemism for “obscene profits”?)

Once you pay the fee, though – or if you’re a lawyer on the case and get “one free look” – you can do anything you want with the document, because it’s considered public domain. That includes uploading it to public.resource.org, through their PACER recycling tool, so that anyone will be able to download the documents for free.

I’ve spent a few minutes looking through the site, and have even uploaded a few documents. Here’s what I’ve noticed right away:

1. They’re just getting started. Only a small percentage of recent cases are represented, with most cases having only one document available.
2. Unless you know exactly what you’re looking for, you’re not likely to find it. There’s no search function whatsoever, and Google doesn’t seem to get deep enough to index the documents themselves. But everything is organized by court and by case number, so if you have those two bits of information, you’ll know in seconds whether your documents are available.

I think this is a great idea, if a bit underdeveloped at this stage, and I wonder if it wouldn’t be possible for someone to produce a more complete archive using an ad-based revenue model instead of a nonprofit model. But in the meantime, if I need something from PACER, I’m pretty much resigned to paying for it.

Via Stay Violation.

As Lewis Black once said:

The only thing worse than a Republican or a Democrat, is when these two pricks work together! Basically how it works in congress is that a Republican stands up and says ‘Hey, I got a really bad idea’, and a Democrat stands up and says ‘And I can make it shittier.’

Here’s one way in which the new Democratic congress has taken a really bad Republican idea and made it even worse. This week the House of Representatives passed – with only two dissenting votes – H.R. 3791, the “Securing Adolescents From Exploitation-Online Act of 2007.”

This new legislation would require anyone providing an “electronic communication service” – that’s your ISP, MySpace, the internet cafe down the street, and your neighbor who failed to secure his wireless network – to report to the authorities the identity of any person they believe to be involved in child porn or “transferring obscene matter.” Failure to make the report could result in fines as high as $300,000.00… and, oh, yeah, seizure of all your computer equipment and data for “investigative” purposes.

Now, it might not be easy to define child porn, but it’s a safe bet that most of us know it when we see it. (Um…. would know it. If we saw it. ) But what to figure out what might be obscene matter and not obscene matter is pretty tough even for the Supreme Court to figure out, let alone the untrained layperson. (Um… non-lawyer.) So, in the interests of educating the public, I’ve decided help those of you running “electronic communications services” (lock down that wi-fi, people!) sort out what kinds of “obscene” material you are likely to encounter on your network, and would therefore have to report to the authorities:

Five Terribly Obscene Things Americans With Open Networks Must Report to the Authorities Under H.R. 3791

1. Video depictions of University of Hawaii football players watching a one-loss team play a two-loss team for the BCS National Championship
2. Photographic depictions of Kevin Federline’s ex-wife’s genitalia
3. Uwe Boll not getting knocked the hell down.
4. Digital transmissions of Kevin Federline’s ex-wife’s new album
5. Any depiction of a Member of Congress engaged in the explicit act of supporting legislating like H.R. 3791

Hat tip to Engadget for the story and to Merlin for 5ives.

The Oregon Attorney General’s Office has asked a federal court to require the RIAA to tell the state who is downloading information from computers belonging to students at the University of Oregon. In proceedings to determine whether the University must reveal the names of its students in response to the ex parte subpoena issued by the RIAA’s lawyers, the AG’s office has filed a brief opposing the release of the students’ information and alerting the court that the RIAA’s motion raises serious questions of criminal activity by the record companies’ investigators.

Plaintiffs’ third-party investigator, MediaSentry, is investigating in Oregon without a license as required by ORS 703.405. Affidavit of von Ter Stegge, 1/10. By investigating Oregonians without proper licensing, MediaSentry may be in violation of ORS 703.993(2), a misdemeanor crime.

Also, the AG’s Office expressed deep concern that the record company’s investigators were prying into students’ private data without the permission of those students.

Plaintiffs’ investigation practices probably provide the capability to “mine” private, confidential information unrelated to copyright
infringement…. [F]ile-sharing programs… sometimes upload personal and confidential information of the user and make that information available for sharing unbeknownst to the user. It only follows that Plaintiffs’ investigator, MediaSentry, has access to such information when it is stored in a file-sharing program that it is “mining.” … Plaintiffs may be spying on students who use the University’s computer system and may be accessing much more than IP addresses.

What kind of information that the AG’s Office is concerned about? Oh, nothing special, just “email, credit card information, user name, passwords, internet purchase information, internet search history, and file sharing.”

Would you trust unlicensed investigators with your email, credit cards, or passwords? Neither would I.

The brief, which you really ought to read if you care about privacy and due process, also raises concerns that the RIAA’s lawyers are submitting misleading affidavits to the court, along with other unsavory tactics.

(Via Recording Industry vs The People.)

Of the twenty-thousand or so (I’ve heard higher) people who have been sued by the RIAA in the past four years for file-sharing, not one has ever gone to trial before this week. But this week in Duluth, Minnestoa, Capitol Records, et al v. Jammie Thomas is just about to go to the jury. Several sites have excellent coverage, and Ray Beckerman’s Recording Industry vs. the People blog has links to just about all of it.

One very interesting nugget of information has come out of the trial, when attorneys for the defense got to cross-examine Jennifer Pariser, Sony BMG’s head of litigation. Ars Technica reports:

Pariser estimated the number at a “few thousand.” “More like 20,000,” suggested Toder. “That’s probably an overstatement,” Pariser replied. She then made perhaps the most startling comment of the day. Saying that the record labels have spent “millions” on the lawsuits, she then said that “we’ve lost money on this program.”

There are a several glimmers of hope that have come out of this litigation – including the possibility that the defendant just might win this one – but the fact that the record companies are losing money on this deal means that eventually, their shareholders will get fed up with the litigation and demand an end to it.

Shareholders? Time to act.

I’ve got three:

• Rage Against the Machine: RIAA Litigation Update

  The recording industry has ramped up its litigation campaign against peer-to-peer file sharing suspects, with cases now numbering in the high thousands. This session explores recent developments in the various cases nationwide and how someone caught in this driftnet litigation might defend themselves.

• Among Thieves: Preventing Online Copyright Infringement

  Digital photographers, web designers, and graphic artists are extremely vulnerable to online theft of their work. This session will explore copyright and trademark law protections for the freelancer and small-shop digital professional.

• Targeting Your Web Site: Accessibility Litigation Update

  How recent court decisions expose web site owners to liability for lack of accessibility, and how to protect yourself.

If you’re interested in any of these (or any other SxSW panels), check out the panel picker and vote.

I haven’t been one to do video here, but I thought this well-presented opinion warranted an exception. A response to Senator Obama’s criticism of the recent partial birth abortion ruling by the Supreme Court:

This neatly sums up the debate between liberals and conservatives on the judicial function. Via RedState.

In the great file-sharing war, it looks like the tide may be turning. Deborah Foster, the defendant in a peer-to-peer file-sharing case out of Oklahoma, not only got the records companies to dismiss their case against her, she got a court award of $68,000 for attorney’s fees – the cost of defending her lawsuit.

The Court emphatically stated that copyright defendants like Foster are entitled to have the cost of their defense paid for by the record companies, even when they refuse to throw their family members under the bus:

The plaintiffs argue that the defendant is not entitled to fees incurred after some point when she allegedly “could have avoided [fees] altogether but chose not to do so.” Throughout the course of this litigation the plaintiffs have alleged that had the defendant appropriately assisted their copyright infringement investigation and litigation, she could have avoided being sued. The Court has rejected this argument on numerous occasions and declines to entertain it yet again. The defendant was entitled to litigate the claims the plaintiffs chose to bring against her and, as the prevailing party on those claims, she is entitled to recover the reasonable attorney’s fees she incurred in so doing.

This decision will no doubt encourage more attorneys to accept defense cases even when the defendants themselves may not be able to pay the fees up front. Where the record companies have been using settlements to fund their ongoing litigation campaign – using defendants’ money against other defendants – now defendants have the prospect of using the huge financial resources of the record companies to level the playing field and fund the resistance to the copyright abuse.

Link via Recording Industry vs. The People.

UPDATE: Consumerist chimes in.

• Those looking for assistance in the central Florida area may want to get more information about my law firm.
• See our press release.

I recently asked one of my clients to provide for me the contact information for a prospective witness. I got back name, last known address, and MySpace alias.

Good thing I know how to use that MySpace thing.

Justice Bedford:

After all, how many cases can be summarized by the Los Angeles Daily Journal as, “Government’s approval of ski resort to use recycled sewage effluent to make artificial snow on San Francisco Peaks violates Religious Freedom Restoration Act”?

That’s not even the good part.

Originally uploaded by CypherXero

According to Wired newly proposed legislation in Congress would lower the threshold for criminal prosecution (and, I think, for civil liability) for computer intrusion under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030.

RIAA Keep your Hands Off My iPod by (_nickd)

By the way, the site that led me to the previous post is a pretty good read if you’ve got a law degree and a strong sense of sticking it to The Man. Recording Industry vs The People chronicles all the pending court battles, the tactics, and the players involved when the music cartel sues another dead woman, or a disabled man, or a technologically clueless single parent. They trumpet the victories, lament the losses, and help point the way to freeing the earth from the scorched-earth litigation tactics of this dying conglomerate. Worth a read even if you don’t have a law degree.

Some people think all lawyers are scum. Then, once every 13 years or so, a lawyer does something that makes everyone stand up and say, “Well done, my good man!”

This news is a couple of months old by now, but it still is worth re-telling that Merl Ledford is a hero for standing up in front of the tanks of the RIAA and making them back down.

Merl’s letter starts off:

The lawsuit filed by your office and your letter arrive at a particularly inappropriate time in Barry and Cathy Merchant’s life. Mrs. Merchant left my office after our first meeting to attend to ill father in Colorado. She and Barry Merchant left my office today to attend his funeral. You should advise your clients that they are facing a “thin skull plaintiff” either on a Rule 11 sanctions motion or (upon favorable termination) in a malicious prosecution action.

It gets better from there.

Your client should carefully consider whether it has probable cause to proceed at this point. Mr. Merchant’s hard drive is available for immediate, carefully supervised inspection by your client; a carbon copy of the drive has been made by technicians to insure that the evidence is well backed-up. At the time of inspection, we will expect your clients to be prepared to dismiss all claims with prejudice. The pleadings may be e-filed from my office the same day. Although dismissal will not avoid your clients’ exposure to attorneys’ fees under the Copyright Act, it will certainly mitigate damages to Mr. and Mrs. Merchant and the possibility of escalating the issues by counter-claim on federal grounds that have been successfully pleaded in other states as well as on pendant California claims that have, thus far, tempered your clients’ California zeal for litigating in this state.

(Emphasis added). In other words, even if you drop this suit, folks, you’re going to have to cough up some cash.

It is well documented that your clients’ reliance on MediaSecurity (an admitted “non-expert;” UMG v. Lidor, East Dist NY No. 1:05-cv-01095-DGT-RML) and its overall method of identifying P2P copyright infringers is wholly unreliable and inadequate.

Translation: You’ve got no case.

It is not too late to correct your clients’ (and your law firm’s) mistakes. My clients are willing to accept dismissal of the litigation in exchange for: 1. Payment of Mr. Merchant’s reasonable fees and costs including retainer… 2. Apology on your firm’s letterhead by your supervising partner for inappropriately filing and maintaining an action against Mr. Merchant without probable cause…

And then there’s the procedural discussion:

Procedurally, we need to address how best to move the case to the Fresno Branch so you can enjoy our new Courthouse and avoid Judge Levi’s wrath for filing in the wrong court…. Once the case is moved to the Fresno Branch, your clients should consider cleaning up their complaint. The FRCP and collateral estoppel from other RIAA law and motion matters require much greater specificity in pleading than your clients provided in the complaint I reviewed. Dates of the alleged downloads, which plaintiff (or affiliate) holds which copyright to which track, etc. must be specifically pleaded and proven. You are as familiar as I am with the results in other cases where RIAA’s general allegations have been challenged. Let’s get over that hurdle without unnecessary law and motion practice.

Translation: Even if you had evidence, your legal writing is so sloppy it would get tossed out of court.

And what was the result of this letter? The RIAA blinked.

We need more lawyers like Merl and a few less who are willing to pimp out their law degrees for the recording industry.

Do you know the significance of this number?

13,256,278,887,989,457,651,018,865,901,401,704,640

It’s currently at the heart of a battle over First Amendment rights. Some think it’s hexed.

FOR IMMEDIATE RELEASE: Florida lawyer Michael Alex Wasylik announced that he has filed suit today in U.S. District Court in Tampa against Chicago-based web application firm 37Signals. The suit alleges trademark infringement of the Perpetual Beta name and seeks damages in the amount of 13 signals – just over one-third of the company.

“I’ve ben using this name since 2000,” said Wasylik, “and then these guys come along and tarnish it by applying it to fly-by-night dot-coms like Google and Flickr. They’ve probably never had an original thought in their lives. I’ll show them!”

Citing a recent surge in online theft of intellectual property, Wasylik said the only remedy was to “sue the bastards. Sue them so hard that their grandkids feel it.” Asked how he filed the suit on a Sunday, Wasylik said that the court has special hours for the April 1st holiday

Contact: http://perpetualbeta.com/contact/

UPDATE (3/27/08): This case has been decided.

Ted Frank at Overlawyered weighs in on this Washington Post story about a lawsuit against anti-plagiarism service Turnitin:

There are entrepreneurs who come up with good ideas for services and products, and entrepreneurs who come up with good ideas for lawsuits against the first group.

Unfortunately, Ted doesn’t spend any time applying his considerable legal talents to the question of whether the lawsuit has any merit or the more important question of whether Turnitin is doing anything wrong here. I can’t imagine an entreprenuer’s idea to be a “good” one if it’s flatly illegal. I’d like to do what Ted didn’t. From Turnitin’s web page, here’s what they do:

Every paper submitted is returned in the form of a customized Originality Report. Results are based on exhaustive searches of billions of pages from both current and archived instances of the internet, millions of student papers previously submitted to Turnitin, and commercial databases of journal articles and periodicals.

Emphasis mine. The company takes all the papers submitted to it, and inserts those papers into a proprietary database which it then uses for commercial gain. Apparently, the company also uses excerpts from its database in its reports, where those excerpts have been re-used by a later author.

Assuming for a moment that high school students’ papers have the required originality to acquire copyright protection — and of course they do — does the Turnitin method infringe the copyrights of those students? To the extent that Turnitin 1) copies the papers, 2) distributed the papers, or 3) creative derivative works of the papers, it does infringe. I’m having a hard time imagine how the company could do all it says it does without doing all three: copying, distributing, and creating derivatives.

Does Turnitin have a valid defense? There are two likely possibilities: fair use, and license. License is the easiest to dispose of: the students did not choose to submit their papers to the company; their school did. Unless there’s some kind of voluntary written agreement by the students to participate in the program, I doubt there is anything here that could be considered permission by the students to have their work used.

Fair use is a slightly tougher question. The factors courts look at are:

1. Character of the use;
2. Nature of the work to be used;
3. How much of the work is used; and,
4. What effect would the use have on marketing of the work?

In this case the answers are: 1) commercial; 2) covers the whole spectrum from factual to creative; 3) complete use in the database, but excerpted use for reports; and 4) probably minimal, as few of these papers would ever see commercial publication.

Many courts will apply the fourth factor more heavily when considering fair use, so it’s impossible to predict exactly how a court would rule on this. I suspect, though, that the involuntary use of the complete papers for financial gain would, at least in some courts’ eyes, fall outside the fair use realm.

At the very least, these students can make a case that their copyrights have been infringed. Turnitin may present a successful defense, but that wouldn’t render the students’ claims frivolous in any way. Ted’s half-hearted slap at the plaintiffs is probably undeserved: their case has arguable merit, and it’s not being pushed by some lawyer just out to make a buck. According to the Post, he’s working pro bono. (Although it’s not impossible for such work to result in a fee award from the courts, it’s a pretty risky way to earn a living.) AlI can say is, if it were my papers being submitted, I’d be pretty pissed too.

Via Eloquation, an apology from LogoMaid.

In name of Vilords media I need to apologize for the inconvenience caused. I feel really sorry that we didn’t remove the logotype rightaway…and let this situation ascalate. It took us too long to understand the designer we worked with for over 3 years obviously did copy the main shape of your logo. We figured it when we saw the owl logotype…

Took too long? They only figured it out when that same designer uploaded another ripped-off logo days after the lid came off the scandal?

Well, read the whole thread and judge for yourself. But I wonder what “West Virginia’s Best Designer” has to say about this?

One of the most persistent myths in the area of copyright law is the notion that wrapping something in an envelope, mailing it to yourself, and then holding onto the delivered envelope somehow helps you protect your legal rights as the creator of a work. The “envelope method” not only doesn’t work, using it may result in you losing several important protections that other copyright holders enjoy.

The Theory

The argument in favor of the so-called “poor man’s copyright” goes something like this: under current U.S. and international law, copyright begins at the moment the work is created. No registration is required for a work to enjoy copyright protection under the law.

So far, so good. But proponents suggest using the envelope method as a way to prove that: 1) you are the author of the work; and 2) that you created it on or before the date of mailing. Once you can prove those two things, the argument goes, you can enforce your rights in court. Unfortunately, this part is wrong.

Your Envelope Doesn’t Prove a Thing

The only thing a postmarked envelope proves is that someone mailed an envelope. Not even a certified mail delivery can prove what was inside the envelope when it was mailed. But, some would say, opening a sealed envelope will show what’s inside. Yes, but that doesn’t prove that it was in the envelope when it was mailed. There are numerous tricks one can use, including sending the envelope unsealed, or steaming it open afterwards, or other tricks a careful Internet search might reveal, to put something in an envelope after it has been mailed. It still comes down to the testimony of the putative copyright holder claiming that the envelope contained what it appears to.

No authority will take the envelope method seriously. One federal court called it “bizarre” and “mysterious” when a songwriter tried to sue Mariah Carey, claiming that Carey had stolen a song the plaintiff wrote and had mailed to himself. The court ridiculed the supposed author, even saying, “As to the mysterious envelope purportedly containing a copy of the… composition, [he] has made no effort to explain why he would have mailed a copy of the composition to himself in 1989.” Even the Copyright Office advises the public that the envelope method has no legal significance and does not substitute for actual registration.

Registration Requirement

Not only is the envelope method lousy proof, it doesn’t save you the minor trouble of having to register your copyright if you want to sue an infringer. In order to enforce a copyright in court, the author must first register it. This registration is usually inexpensive, but an author who needs a quick turnaround time in order to file a lawsuit may have to pay as much as ten times the normal fee for an “expedited” registration. Ultimately, the envelope method costs much more money than it saves.

Benefits of Registration

Using the envelope method may also waive several important benefits. First, the registration itself provides proof of the date the work was created. Second, an author who registers a copyright before infringement can sue not only for actual damages, but also additional statutory damages, which in some cases may climb to the six-figure range for each violation. Finally, an author who registers before infringement can also recover the reasonable attorney’s fees incurred pursuing a lawsuit. The envelope method does not allow for any of these.

There’s Only One Place to Mail It

If you’re serious about protecting your copyright in something you’ve created, don’t cut corners by using the envelope method. For relatively small fee, and only a few minutes filling out a simple form, you can register your work with the Copyright Office itself, giving you the peace of mind to know that you can enjoy the full protections of the law if someone tries to steal your work. If you’re not serious, then don’t waste the time, the postage, or the envelope.

This document is for informational purposes only and does not substitute for the advice of an attorney licensed to practice in your area.

This work (this post only) is licensed under a Creative Commons Attribution-No Derivative Works 3.0 License. You may freely distribute this post as long as you do not change it in any way and you include this attribution: Written by Michael Alex Wasylik, 2007.

[PDF version available]

As Dan originally noted, and as Jon Gruber has reported in more detail, some shabby logo mill has ripped off the SimpleBits logo to re-package and sell for their own profit.

The Flickr thread is lengthy, and much of the amateur legal analysis on both sides is quite simply wrong. But it’s very illuminating, especially the several examples of theft by the shabby logo mill from an ever-growing array of victims.

It’s nice to see that the web is onto these assclowns and, given time, their “business” will dry up, rumble into dust, and blow away like mold exposed to the sunlight. But like many parasitic life forms, thieves evolve, multiply, and repeat. People who post creative work on the web need to be aware of their rights, and if they’re creative professionals, they should take steps to legally protect their work to the greatest extent possible.

UPDATE: But wait! There’s more!

UPDATE 2: Here’s a nice summary of all the rip-offs by the shady logo mill. And some PageRank rolling, too. By the way, try a Google search for the name of the offending company and see what pops up in the Top Five.

UPDATE 3: Godbit lists several blogs mentioning the issue. Also, be sure to check out my recent post on the so-called “Poor Man’s Copyright” and why it’s worse than useless.

UPDATE 4: An apology, Too Little, Too Late.

Wild Bill at the Passionate America blog got an email from attorney Stephen Jones, on behalf of former Congressional Page and infamous prankster Jordan Edmund. While this may be an “Oh, crap!” moment for Bill and his family, it’s a chance for me to engage in a little translation of lawyer-speak to ordinary English:

Um, yeah, Mr. Jones. We’ll get right on that.

Those of you in the Tampa Bay TV market may want to tune in to Channel 8 for tonight’s Five O’Clock News. I’ll be talking briefly about one of the proposed amendments to the Florida Constitution – specifically, proposal No. 3, “Requiring Broader Public Support for Constitutional Amendments or Revisions.”

Anchor and reporter Josh Thomas conducted the interview.

Ricardo & Wasylik to Move Offices to Historic Train Depot

Law Firm’s Growth Drives Relocation

Dade City, Florida (July 12, 2006) – Ricardo & Wasylik, PL, a
law firm based in Dade City, announced today plans to move its offices to
the Historic Train Depot at Meridian Avenue and the Highway 98 Bypass.

We need to move because of our strong growth, said Jason
Ricardo, who founded the firm in February 2004. Since the firm opened,
we have doubled in size, so we need more space than we currently enjoy.
Moving to within a stone’s throw of the Pasco County Courthouse provides
us with an ideal location.

The firm, presently located on 7th Street above Kiefer Village Jewels,
practices general litigation and focuses in the areas of consumer,
commercial, property, family law and employment litigation. The new
location is expected to open in early September.

We are excited about this new opportunity, said Mike Wasylik, co-
owner of the firm. We think the new location will strengthen our ties to
the Dade City community and make it easier for us to serve our clients on
a much higher level.

About Ricardo & Wasylik, PL

Jason J. Ricardo, a graduate of the Florida State University College of
Law, has practiced law in Florida since 1995. His experience includes
service as a state prosecutor in Pensacola, Florida, and several years as a
litigator with some of Central Florida’s most respected law firms. Ricardo
has practiced in the areas of workers’ compensation, insurance defense,
employment discrimination, criminal defense, family law, and consumer,
property and commercial litigation.

Michael Alex Wasylik also graduated from the Florida State College
of Law in 1995 and has practiced law in Florida, Virginia, and Washington
D.C. His experience includes legislative work for the United States
Congress, both for the House and Senate, and as a litigator with firms in
Florida, Washington D.C., and Virginia. Wasylik has practiced in the areas
of workers’ compensation, professional liability defense, small business
law and contract disputes, employment law, and consumer, property and
commercial litigation.

Ricardo & Wasylik, PL is currently located at 14149 7th Street in
Dade City. For more information, please contact Mike Wasylik at
352.567.3173 or visit www.ricardolaw.com.

Download the pdf of this release

Several months ago, I noted that the Florida Bar had decided to burn witches – urm, prohibit the mining of metadata.

Doing some metadata research today, I finally found the real reason the Bar acted so strongly – one of the members of the Board of Governors got suckered.

One Florida lawyer was quite upset when he learned his firm had been hoodwinked into e-mailing a document to opposing counsel instead of faxing it so that the metadata could be mined by opposing counsel. Apparently some client comments that were attached to the document and then deleted were recovered by opposing counsel. Well, this lawyer was on the Florida Bar’s Board of Governors…

There are few things as dangerous as a powerful person who’s been made to feel foolish.

This is a little inside baseball, but a federal judge in Arkansas has ruled that the federal Class Action Fairness Act of 2005 does not apply to cases that have NOT been filed under Federal Rule 23 (governing class actions) or state law equivalent, even if the relief asked for is essentially identical.

The motion sought relief, Beverly argued, that would be certifiable as a class action under Federal Rule 23 in accordance with the expanded federal jurisdiction provided by CAFA. Essentially, the defendants alleged, Quack, quack, quack. And quack, quack.

The court has, wisely in my opinion, determined that a bright-line rule should apply, instead of expecting courts to apply a case-by-case analysis to determine whether or not a case is sufficiently like a class action to qualify for removal to federal court from the various state courts.

In this day and age, many courts issue their orders electronically, and most lawyers have access to the online public records, which means that when a judge does something unusual, the e-mail chain spreads it quickly. This one just landed in my email box.

Wednesday, a federal judge in Orlando, Gregory Presnell, ordered the lawyers in one case to resolve a minor procedural dispute through a game of rock, paper, scissors, angrily noting that this was “the latest in a series of Gordian knots that the parties have been unable to untangle without enlisting the assistance of the federal courts.” I’ve mirrored the order online [pdf document].

Apparently, the lawyers have offices in the same building, four floors apart, and couldn’t agree whether to have depositions in that building or some “neutral” location. As a general matter of practice, the party who seeks the deposition has the right to select the location, unless the location is outside the jurisdiction. Why the parties couldn’t agree, I cannot say.

Although it may be seen as an improper abdication of judicial responsibility to settle disputes, this is really a stern rebuke to the parties involved. The court may or may not intend the lawyers to actually play this game; the court does clearly intend that the lawyers shouldn’t waste the court’s time on minor procedural matters that professionals ought to be able to resolve themselves.

Also, Orlando Sentinel reports on the matter, along with a couple of other weblogs: Guboogi and SALTlawyer.

UPDATE: One of my collegaues is familiar with at least one of the attorneys on the case and is, shall we say, unsurprised that this lawyer finds himself in this predicament.