Prof. mounts constitutional counterattack to RIAA claims
November 17, 2008
Let me say I never once illegally downloaded songs or videos when I was in college. Let me also say I’m glad not to be under oath right now.
However, if neither one of those things were the case, I’d be happy to have Charles Nesson on my side. Nesson, a Harvard Law School professor, has come to the aide of Joel Tenenbaum, a 24-year-old Boston University student who’s being sued by the Recording Industry Association of America for downloading at “least seven songs and making 816 music files available for distribution on the Kazaa file-sharing network in 2004.”
They want $12,000. Yeah, that sounds fair.
According to an AP story, of the more than 30,000 RIAA complaints issued, only one has gone to trial — “nearly everyone else settled out of court to avoid damages and limit the attorney fees and legal costs that escalate over time.”
Nesson is hoping to stop the RIAA by challenging the constitutionality of the law it’s using to bash people about the neck and shoulders.
Nesson argues that the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is unconstitutional because it effectively lets a private group - the Recording Industry Association of America, or RIAA - carry out civil enforcement of a criminal law. He also says the music industry group abused the legal process by brandishing the prospects of lengthy and costly lawsuits in an effort to intimidate people into settling cases out of court.
Nesson, the founder of Harvard’s Berkman Center for Internet and Society, said in an interview that his goal is to “turn the courts away from allowing themselves to be used like a low-grade collection agency.”
Now I have no idea whether this will work, but I do think it’s an interesting tactic. Any lawyer out there have an opinion on the merits of Nesson’s position?
(In the interest of full disclosure: Entertainment attorney Jay Cooper, who is quoted in the piece and who specializes in music and copyright issues, works for the same law firm as my father, though in a different field of law and on a different coast.)
JOE BACCHUS, Web Specialist
Sphere: Related ContentLaw blog round-up
November 17, 2008
Good morning, Baltimore! (I must be getting old, because the first thing that came to my mind as I typed that was not Hairspray but Robin Williams, as in, “Goooood Morning Vietnaaaam!”) Anyway, here are a few law links to help you procrastinate on this chilly morning:
— Alan Horwitz at the Maryland Personal Injury Blog (not to be confused with the Maryland Injury Lawyer Blog) writes about “steer clear” laws governing how drivers should behave when there’s an emergency vehicle approaching.
— Obama needs to act quickly to fill the 4th Circuit, and he needs to do it in bipartisan fashion, law prof Carl Tobias says.
— Ever feel like practicing law is sort of like working out on a treadmill — you run yourself ragged but never seem to get anywhere? Then you’ll love this idea.
— David Feige at Indefensible has started a “Scooter Libby Pardon Countdown Clock.”
— Prosecutors can use the word “suicide” in the trial of Lori Drew for violating MySpace’s terms of service by posing as a teenage boy, a judge has held. Drew, pretending to be a teenager, allegedly befriended and flirted with a former friend of her daughter on MySpace, then taunted the girl. The 13-year-old, Megan Meier, hanged herself immediately after receiving an upsetting online message from Drew. Drew’s trial starts tomorrow.
CARYN TAMBER, Legal Affairs Writer
Sphere: Related ContentABA: No press allowed
November 14, 2008
The American Bar Association has long been a champion of transparency in government and its own deliberations. As a reporter, I have covered many meetings of the group’s various law sections — from antitrust to intellectual property — and have always felt welcome to quote the presenters and panelists on what they expected the executive branch and Congress to do with respect to issues such as mergers, acquisitions and patents.
So I found it passing strange this morning when the ABA’s Section of Business Law closed to the press its fall meeting on Banking Law at which panelists and presenters were scheduled to discuss timely topics, such as what legislation Congress might consider in an effort to end the global credit and market crises.
The explanation for the lockout was that the speakers, many from federal agencies and high-ranking aides on congressional committees, would be less candid if the media were present.
Now, I understand the need for congressional staff members to exclude the press when they are providing advice to senators and representatives. A reporter’s presence can dull the tone — and soften the word choice — of the adviser, thus making it more difficult for him or her to get an important point across.
But the ABA meeting — with more than 100 interested spectators in attendance — lacked that reasonable expectation of privacy accorded to a private meeting between a staff member and a boss.
The press should have been allowed to attend.
STEVE LASH, Legal Affair Writer
Sphere: Related ContentPlumbing for churches
November 13, 2008
It seems religious folks in Prince George’s County are having a hell of a time getting public plumbing for their churches.
When I read my colleague Steve Lash’s piece about a federal judge siding with Seventh Day Adventist Reaching Hearts International Inc. against the county, I was immediately reminded of another church in that area whose expansion efforts had been stymied by the same water and sewer stumbling blocks.
Apparently, I wasn’t alone. The lawyer for Bethel World Outreach Ministries, Roman P. Storzer, who regularly litigates on behalf of religious groups, saw the decision (PDF) in the Reaching Hearts case and fired off a letter (PDF) to the judge in his case, alerting him to its “extremely similar” facts.
Storzer said the Reaching Hearts case provides “strong reason” to deny a pending motion to dismiss his case.
WWJ (the judge, that is) D?
BRENDAN KEARNEY, Legal Affairs Writer
Sphere: Related ContentHold the snarking, please, we’re business lawyers
November 13, 2008
A lawyer acting in a jerk-like manner toward a law student? Imagine my surprise. But apparently, the Business Law Section is a bit more civil than that.
The student posted a request for help with a homework assignment on the MSBA Business Law Section’s listserve. Attorney #1, managing partner at a D.C. firm with offices in Fairfax and Potomac, took umbrage at that. Here’s a sample of his post:
“Third, absent an express authorization from your professor to solicit ideas for your academic memo from lawyers, what you have done is, in my opinion, cheating. The objective of a legal education is to teach YOUR mind to think like a lawyer. The objective is not to determine whether you can collect information from other human sources, like a journalist. What you have done is also an inappropriate use of this list. It is also rather extremely public and, therefore, not a great indicator of future sagacity.
I suppose telephone calls don’t even cost a dime anymore, because everyone has free minutes. Call home, and tell your mother that your budding legal career is at risk.”
That, in turn, drew rebukes from, among others, a well-known partner at Venable:
“It is generally not my style to call someone out in public, but I feel your e-mail to this student demands a response from other members of the bar for the good of this student and the decency of our profession. … A public diatribe directed at this young man whose integrity you publically attack based only upon your assumption of the assignment degrades our Association. When our Section decided to launch this list it was for the purpose of encouraging discussion among members not to provide a forum where more senior members could humiliate those learning their way. … To Mr. Stevenson I say we’re sorry. Good luck on your assignment.”
The posts are still coming. No word from Attorney #1 at this writing, but the student (apparently a first-year at Maryland) has thanked his backers and responded to his detractor, who had invited proof that the professor authorized the use of “human sources.” This is from the student’s post:
“I need not provide you proof, sir. I’ve done nothing wrong and I’ve offered to let you contact the professor and the Dean if you wish… I thought I had joined a listserv where thoughts were thrown about. Perhaps I was wrong…”
No, young man, I’d say you were dead on. And, since you have to belong to the section to get to the listserve, this might be the best thing ever to happen to membership.
BARBARA GRZINCIC, Managing Editor/Law
Sphere: Related Content‘Visionary’ pathologist gets credit in cold cases
November 12, 2008
Just before Baltimore County Judge Dana M. Levitz sentenced Alphonso W. Hill on Wednesday for eight rapes committed between 1978 and 1989, Levitz paused to give special thanks to a man he called a “visionary.”
Levitz thought Dr. Rudiger Breitenecker was not in his courtroom, but prosecutors and audience members, including seven of Hill’s victims, quickly pointed out the semi-retired forensic pathologist.
Then they applauded him.
“If it weren’t for him, Mr. Hill would be on the street,” Levitz said.
That’s because Hill was connected to the eight rapes through DNA evidence that was only available because Breitenecker, who worked at Greater Baltimore Medical Center, saved it even before DNA testing was possible.
Sphere: Related ContentSupreme Court retirements may not happen
November 12, 2008
Our sister blog, DC Dicta, has this piece on the prospects for turnover on the Supreme Court. The bottom line: don’t count on Justices John Paul Stevens (who is 88), Ruth Bader Ginsburg (75) or David Souter (a mere 69, but reportedly pining for New England) retiring just yet.
As ABC News Supreme Court correspondent Jan Crawford Greenburg writes on her blog, “justices can surprise.” Justice Thurgood Marshall, for example, could have retired in his 70s while Carter was president, but didn’t; instead, he rode out the Reagan years and finally retired in 1991, during the first Bush administration.
DC Dicta notes that Stevens remains as sharp and spry as ever; Ginsburg has told friends she hopes to stay on the bench until she’s at least Stevens’ age (HT: Greenburg and Legal Times’ Tony Mauro) and Souter’s happy in his work, if not its location. He was particularly vocal during Monday’s oral arguments in Melendez-Diaz v. Mass. and Chambers v. U.S., D.C. Dicta says.
What do you think – how many justices will the new president get the chance to appoint? And if it were up to you, who would you pick?
BARBARA GRZINCIC, Managing Editor/Law
Sphere: Related ContentLyrics worth missing at FedEx Field
November 11, 2008
More than a month after a federal judge ruled FedEx Field, home of the Washington Redskins, must provide deaf and hard-of-hearing fans with “equal access to aural content” broadcast in the stadium, lawyers for the plaintiffs in the case and their beloved football team are still negotiating how, exactly, to implement the precedent-setting decision.
Since the Redskins have already taken significant steps to accommodate the three men, the only remaining issues are how to ensure they see the lyrics of songs being played on the Public Address system and where, relative to the video screens, accompanying captions must be displayed.
One potential solution is a hand-held device, programmed to show captions and lyrics at the appropriate times. But attorneys for both sides last week told U.S. District Judge Alexander Williams Jr. that they had no progress to report because none of the plaintiffs had been able to try out the devices.
Two of the plaintiffs did not attend last week’s Monday Night Football game against the Steelers and the third plaintiff did not ask for a handset until too late in the game. (Since the Redskins have a bye this week, both sides requested an extension until Nov. 20 to let the judge know whether the team’s further fixes are satisfactory to the plaintiffs.)
I asked their lawyer, Joseph B. Espo, why his clients skipped an opportunity to test a possible solution to their protracted legal tussle with the Redskins.
“Beats me,” Espo said.
Sphere: Related ContentIs economic downturn hurting Baltimore law firms?
November 11, 2008
Whenever I talk to local law firms about how the economic downturn is affecting their business, I tend to get a stock answer: it isn’t.
Some firms say it’s because the Baltimore market is insulated from some of the worst because few lawyers here practice the kind of finance law that’s suffered lately. Others say it’s because of good planning on their part. While New York firms grew bloated with high-priced associates during the boom, the smart Baltimoreans restrained themselves, stayed lean and are now in a better position, the story goes.
But stories like one from the New York Lawyer, forwarded by my colleague Brendan Kearney, really make me wonder how long Baltimore firms can dodge the impact of the lousy economy, if in fact they’re actually successfully dodging now. The link is subscriber-only, but here’s some:
The legal services sector shed 1,100 jobs in October as contraction in the general economy continued to hit law firm employment, according to figures released Friday by the U.S. Bureau of Labor Statistics.
Overall, jobs in the legal industry have shrunk 1.1 percent since October 2007, the report says, to 1.16 million employees.
Not all of the laid-off workers are lawyers; this report covers anyone in the legal industry. The article also points out that the decline was helped along by a couple of big-firm collapses.
But if the industry as a whole is trending downward, how long will it be before firms here feel it? When they do, will they shed mainly secretaries, or will lawyers get the boot, too? If there are lawyer layoffs, will the firms even admit the economic motivation, or will they insist that they’re just shedding dead weight? (They’d be wise to be upfront, as this story shows.) Are solos and small firms already feeling the downturn? How about government law offices?
CARYN TAMBER, Legal Affairs Writer
Sphere: Related ContentThis week in Maryland Lawyer
November 10, 2008
Marland’s federal courthouses need renovation, if not replacement, judges and other court users say; however, relief is a long way off. The Garmatz building in Baltimore is dilapidated, outdated, not secure enough and too small, while the Greenbelt Courthouse was “essentially out of space the day it opened,” Chief Judge Benson E. Legg says.
What will an Obama administration mean for the 4th Circuit? With four of the 15 spots on the bench vacant, the president-elect has a chance to reshape what has been called the nation’s most conservative appellate court.
Hold the lawyer jokes, please: Paul De Santis takes his work with pit bulls and other cast-off dogs seriously. De Santis, who practices in Baltimore County, serves as president of Recycled Love, a Baltimore nonprofit that retrains and places homeless dogs, including several pit bulls previously owned by Michael Vick.
In the news:
- U.S. Attorney Rod J. Rosenstein, whose four-year term ends in July, says he’s not actively looking for a new job;
- A Reisterstown lawyer is liable for fraudulently conveying money to avoid paying damages to the teenage girl who accused him of sexually abusing her, the Court of Special Appeals affirms;
- The Court of Appeals revives a wrongful death lawsuit over a delayed diagnosis of uterine cancer; and
- A Western Maryland man has filed a $220 million suit against Yamaha Motor Co. over the design of its Rhino sport vehicle.
In Verdicts & Settlements, Brendan Kearney writes about a jury’s award of $58,000 to an antiques dealer who lost his prized 18th-century card table to a “classic diversion theft,” and a federal jury’s award of $830,000 in a motor tort case that left both sides claiming victory.
In our Commentary/Opinion section, guest columnist William Galkin looks at business-method patents after the Federal Circuit’s ruling in Bilski, while Joe Surkiewicz writes about Legal Aid’s Long Term Care Assistance Project. And in a letter to the editor, Diana Morris and Monique Dixon of the Open Society Institute-Baltimore comment on crack cocaine guidelines and the need for more money for re-entry programs.
PLUS: Read the Legal Briefs, On the Move, and our weekly Law Digest, this week with cases from the Maryland’s Court of Appeals, Court of Special Appeals (in two parts), and U.S. District Court.
BARBARA GRZINCIC, Managing Editor/Law
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