First Amendment vs. Disabilities Act

(From Charles Platt) Is this a real threat, or just posturing? The ADA has already been extended far beyond the areas in which is was first designed to apply. I can certainly imagine regulations compelling web sites to be “equally accessible” to the disabled. Discussion here.

Jonas Williams: If you are a process server, you damn well better not lie on your service affidavit

This is, in the grand scheme of things, not a very important case. However, to a lot of people, it might be.

There was a process server operating in San Diego by the name of Jonas Williams. Instead of actually serving the people he was asked to, he just signed the affidavits of service as if he did. I was not his first victim, but by golly I’m pretty sure that I’m his last.

My wife and I filed an abuse of process claim against the guy, and prevailed. It was a default, but he’s known about the case and just chose not to defend it. And, we had cell phone records showing that I was 20 miles from where he allegedly served me. I have heard from a number of people who had similar problems with this guy. (Including this poor soul, who the court did not believe) If you’ve been the victim of this kind of behavior, please feel free to rip off the complaint in this case and administer corrective disincentives to any process server that does this to you, but especially if it’s this Williams character.

If you’re thinking of hiring him as your process server (or for any other position requiring trust) – consider the potential ramifications of doing so.

Randazza v. Jonas Williams Complaint

Randazza v. Jonas Williams Judgment Papers

The best part of the news, it is not as if it is an uncollectable judgment. Process servers must carry surety bonds. I just cashed in Mr. Williams’ bond for a portion of the judgment.

If this has happened to you, don’t think that you’ll get nothing more than a worthless piece of paper.

Rakofsky v. The Internet – LINK FIXED

The long saga of Rakofsky v. The Internet is over (at least for now). The Order is here.

Stay tuned, I’d imagine that there will be an appeal.

The order is a bit soft, but the findings of fact are devastating.

Rakofsky v. The Internet ORDER

The long saga of Rakofsky v. The Internet is over (at least for now). The Order is here.

Stay tuned, I’d imagine that there will be an appeal.

ORDER UPDATED

9th Circuit rules – Righthaven is dead, finally. Righthaven v. Hoehn

The order speaks for itself – and here it is.

Mutually Assured (Asset) Destruction

By J. DeVoy

The maxim of “if I can’t have [something], then no one will” is childish, but very effective in estate planning disputes.  To demonstrate this point, we’ll use a hypothetical where you’re a child of parent with inheritable assets, and have an all-around inferior sibling – albeit one whom your parents insist they love equally – who is also in line for those assets.  For various reasons, your parents insist on at least an equal division of assets, but also threaten to write you out of the will and leave you nothing because of your antipathy for lesser family members.

Do you just lie there, take it, and watch five to six, even seven, figures of future value evaporate because of their mercurial whims?  No! You litigate!

Hiring a lawyer to vigorously defend your entitlement to an inheritance – morally, if for no other basis – can be an incredible financial boon.  Merely the knowledge that you’ve lawyered up can lead the future decedents to change their plans, especially upon seeing how much it can cost to repel even a steady stream of letters – depleting the pool of assets they intended to leave behind in the first place.  Once they realize the financial toll of such an engagement, the future decedents may back off their plans to posthumously screw you.  Even if such soft-touch prompts to reconsider fail, a lawyer can evaluate ways to attack the sufficiency of the decedents’ will or wills, and fight to ensure you receive a fair share if the decedents die without a will.

The not-yet-dead can try to get around this by pouring assets into a trust, but that will leave them with fewer assets available to withstand a legal action (formal or not) against them.  Generally speaking, you cannot eat a trust res (and the trustee would likely be in breach of fiduciary duty for allowing anyone to do so), making a policy of being cash-poor untenable.  Thus, trying to hide assets beyond your reach in a trust may have the ultimate effect of significantly weakening the party or parties trying to protect their assets.  Even after the trust is created, it may be altered or terminated to reflect the subsequent good sense of asset-holders who were too clever by half.

As If You Need More Reasons To Hate Baby Boomers

By J. DeVoy

A recent report published by U.S. Trust, Bank of America’s private wealth management wing, reveals the Baby Boomers’ disturbing and ahistorical views about leaving behind an inheritance for their survivors.  From the report’s key findings section:

only about half (55 percent) of Baby Boomers think it is important to leave a financial inheritance to their children. Among those who don’t think it is important, one in three (31 percent) said they would rather leave money to charity than to their children.

In comparison, 73 percent of people 67+ said it is important to leave behind a financial inheritance for their heirs, and 76 percent of people aged 18 to 46 believed the same.

Baby boomers trailed individuals aged 67+ and 18-46 in explaining their motivation for leaving an inheritance as “to protect family wealth,” “to have influence on children after I am gone,” “family tradition,” “to express how I feel about children/heirs,” and “it is a moral obligation.”  However, Boomers led the pack in explaining their motivation for leaving an inheritance as “a tax strategy.”

Rather than pass wealth down through the generations to help their children and grandchildren, almost a full third of Boomers indicated a preference to give everything away to charity.  While 14% of people age 18-46 and 16% of those aged over 67 would not leave behind an inheritance on this basis, a full 31% of Boomers said they would.  Yes, you read that correctly: Boomers would rather basically give their money to “Charity” – an undefined mass of hippies, effete slackers with useless advanced degrees, and inefficient intellectual property bullies – than their own flesh and blood.

In the past, extended and immediate families were more of an economic unit than one of emotions.  Parents, children, siblings, cousins and uncles would work together to form a family business, or complementary businesses.  Marriages were sealed with dowries and arranged in order to amass and protect fortunes and land.  Now they’re basically a roulette table where the wealthier party places half of his or her assets on red.  This decoupling of money and feelings has now reached inheritance, with Boomers leading the way in screwing over their progeny.

Ironically, the Boomers were born into near-tranquility and rode a wave of U.S. supremacy ignited by the destruction of Europe in WWII and sustained by the market distortions and trade embargoes of the Cold War.  When that ended, they implemented policies such as NAFTA and gave nations such as China most-favored-nation status in trading, ensuring that a) goods were cheap to trade, and b) manufactured elsewhere.

While costs soared in the U.S. for a variety of reasons, and opportunities dwindled in the U.S. for another variety of reasons, young people patiently hung on for their parents to die so they would finally have some shot of accumulating wealth.  Many held out hope for a hot cash transfer to finally kick off adulthood and a foothold on financial prosperity.  It appears, however, that the boomers have screwed that up for young people too.

N.B. – The 642 respondents in the U.S. Trust research all had at least $3 million in investable assets, but a) that’s about 2 million people in America, so the sample size and population it drew from is statistically significant; and b) who cares about your attitudes toward inheritance if you don’t have anything to leave behind.

U.S. Supreme Court passes on Thomas-Rasset Case

By J. DeVoy

The United States Supreme Court declined to hear the case of Jammie Thomas-Rasset, the Minnesota woman famously sued by the RIAA (sub nom Capitol Records) in 2006 during its multi-year litigation campaign.  Thomas-Rasset has already gone through three trials and numerous appeals in this matter, and currently faces a judgment of $220,000 held by the RIAA.  While the RIAA claims it has been willing to settle this matter from its inception, Thomas-Rasset has protested throughout the proceedings that she is unable to pay what the RIAA demands.  Thomas-Rasset contends there is no way the RIAA can collect on its judgment.

A Jesuit Named Francis

By J. DeVoy

The new pope is something of a mind-bender for products of Catholic education.  Explaining why takes some time, though.

Jorge Bergoglio is a member of the Jesuit order, commonly known as the “Society of Jesus,” which came into existence in the late 1500′s.  (The term “Society of Jesus” previously referred to a military order established by Pope Pius II in 1450 to fight the Turks and spread Catholicism, but was eventually de-militarized and reappropriated to the Jesuits.)  Founded by St. Ignatius Loyola, the Jesuits generally are the academic wing of Catholicism and run many of its prominent universities, including Georgetown and the numerous Loyola Universities.  While being academics, Jesuits are also something of the flower-children of Catholicism; despite the order’s original purpose being to counteract Martin Luther’s reformation, the Jesuits have by and large lurched to the liberal end of Catholicism.

Predating the Jesuits, there are the Franciscans.  Recognized by the Vatican as an official order in 1209, the Franciscans, individually known as friars, are a religious order dedicated to living out the principles of St. Francis of Assisi.  There are actually three orders of Franciscans, making things fairly complicated, so for the purposes of this discussion we’ll address only the first order – the Order of Friars Minor (“OFM”).* (The Second Order is the Poor Claires, and the Third Order, Penitents, have their roots in the sixth century.)  Unlike the Jesuits, whose members are required to be priests, one can become a friar even without entering priesthood.   While not all Franciscan friars are priests, all are bound by the vows of poverty, chastity and obedience, with poverty being the most distinctive aspect of its order.  Indeed, it was Saint Francis himself who gave up a life of relative material comfort to isolate himself in the woods dedicated to a life of prayer.  Today, we call these people “crazy,” or simply “poor.”

Upon assuming the mantle of the pontificate, Bergoglio took the name of Francis I.  There was an outside shot of Cardinal Sean O’Malley – an actual Franciscan – of becoming the pope.  But now there is a Jesuit acting as pope under the name of the founder of the Franciscan Order, which predates the Jesuit order by more than three centuries.  If this were America, and if this were not the Catholic church, it would be time to sue.

Interestingly enough, this would be an intra-faith dispute that wouldn’t immediately get bounced out of an American court on First Amendment grounds.  Courts refuse to hear intra-faith disputes, or cases between members of the clergy, that concern matters of religious doctrine; to do so would thwart what remains of the barrier between church and state.  A good summary can be found here.  This dispute, however, has nothing to do with faith, and is all about trademark rights.

Someone from a competing source of religious religious order adopting the name of your preexisting religious order’s namesake, and using it as his public name, seems like a non-frivolous trademark and unfair competition claim.  As competing Catholic orders, the Jesuits and Franciscans certainly are in the same market.  In a commercial context, this is analogous to Steve Jobs, before he was kicked out of Apple and while Dell was killing the consumer PC market, renaming himself “Michael Dell” and furthering his persona under that name.  To the uninformed Catholic, Bergoglio has blurred the line between Franciscans and Jesuits.  To the extent normal Catholics knew the two orders even existed, Bergoglio arguably is diverting the goodwill earned by Franciscans toward the Jesuits, to which he belongs and is now the public face of.  Even to someone vaguely “up” on Catholicism, Bergoglio’s decision is just confusing.  From a cynic’s view it looks like a thumb in the eye to Franciscans, using Francis’ name to become more popular based on the work of his order while retaining the intellectual respect the Jesuits have already acquired.

The Franciscans would have a hard time getting in the door to court, although they operate worldwide and have some trademark rights in virtually every jurisdiction that would recognize such a dispute.  The main question would be what Order(s) are the proper plaintiffs to assert rights over Francis’ rights as a source of religious services.  That whole vow of poverty isn’t going to help them retain particularly sophisticated trademark counsel either.  Given Saint Francis’ history and stature within the Catholic church, it seems that Bergoglio would have a good nominal fair use defense as well.  Given Bergoglio’s dislike for ceremony, I don’t doubt he intended his use of Francis’ name to be a tribute to the Saint rather than an attempt to outflank the Franciscans.  But sometimes good intentions aren’t enough.

* The OFM distinction is even further subdivided into three sub-groups, so to speak.  The slightly differing priorities of these groups are externally reflected by different color robes and differing numbers of knots on the cords they wear.  But that’s a topic for another post at a different blog.

H/T: Friar Michael Lasky, who drilled this stuff into my head so thoroughly in high school that I had to do only the most minimal research for this post.  He is currently in Bogota, Colombia, and presumably there to undo the work of Roosh V.

Shameless Plug – Professional Attire

By J. DeVoy

A short while ago, a fellow member of the bar asked me if something he was planning to wear looked “like shit.”  I don’t know. Probably.  It’s not an uncommon problem for professionals like accountants, journalists, lawyers, engineers, and others in research positions who subordinate style to substance. Rather than ask someone who is similarly lacking in vision, why not direct the question to someone who knows what they’re doing?

I did this with Tanner Guzy a few weeks ago and it was the right decision.  Tanner runs the blog Masculine Style and offers very reasonably priced consulting services.  Tanner was able to immediately hone on in what I was trying to clean up about my appearance and offer clear, detailed, and succinct advice about how to improve it.  For $25 and five minutes of time spent filling out a short submission form, I had a detailed analysis within 24 hours that included the following excerpts:

For suits, you’ll want to avoid dark, deep colors like black, charcoal, and midnight navy as you don’t have a strong enough contrast and they will wash you out.  Notice in your second picture that the focus is more on your hair than your face and that your lips look a bit pasty. That’s because the colors are too dark for your complexion.

and

Because of your height you will have the freedom to either opt in or out of having cuffs sewn into your dress pants. This visually anchors your legs and will make them appear just a bit shorter but also larger and more substantial. You can also roll your jeans if you’d like to.

Your dress pants should have a slight break or not break at all. This will visually lengthen your legs and help you appear taller. Too much break will make you appear shorter, ruin the slimness of tailored trousers, and make it look like your suit doesn’t fit.

Does this kind of stuff come naturally to some people? I don’t know, maybe.  But $25 is a pretty good deal for nearly instantaneous advice about how to dress better.  As Brian Tannebaum has previously pointed out, the best attorneys are not the flashiest dressers, but a slight tune-up can improve the visual effect of even the most casual clothes.

Tanner offers a number of other services, such as finding items for specific events (e.g. weddings, funerals – others’ or your own – and the like), or generally finding items to add to your wardrobe.  The cost? 10% of your pre-tax budget.  Considering that some personal shoppers and “”"style consultants”"” charge hourly, this is a pretty good deal.  Plus, Tanner has a written record of actually understanding what he’s talking about, down to the nuances of  jacket arm hole positioning.  Unlike a personal shopper, there’s no upselling with Tanner, and you’re in charge of using as much or as little of his services as needed.

I had such a good experience with Tanner that I wanted to write this to promote his service, available here.  The value he unlocked for $25 was substantial.

The American Conservative on Copyright Reform

By J. DeVoy

Following up on the leaked Republican Study Committee report on copyright law reform from a few months ago, The American Conservative offers this analysis on the political right’s flirtation with scaling back certain copyright protections, such as the duration of copyright and statutory damages of up to $150,000 that can be wielded like a cudgel against small-time infringers.  From the piece:

Today’s copyright law exhibits a pattern typical of crony capitalism—regulations restrict new entrants and creators (DJs and other remix artists in the music field, for instance) to shore up the market position of current players (record labels). But there are now powerful business interests in favor of weakening copyright as well. Opposition to the Chamber of Commerce’s traditional support for strong IP protection was one reason that companies such as Amazon, eBay, Facebook, and Google broke away to start the Internet Association, a trade group for online companies. (source)

Interesting, it is more or less the libertarian element of the political right that seeks to revise some of the copyright act’s protections downward.  While this would be a good start, a “less-is-more” approach wouldn’t be a comprehensive fix for copyright law; much still needs to be done to revise or replace the DMCA, a large statute that carries an importance (and legacy of seemingly contradictory court decisions) which was probably unfathomable when it was drafted, and to further enshrine the doctrine of fair use so that litigating to the rare decision on 17 U.S.C. § 107′s merits won’t require an individual’s financial ruin or the backing of special interests.

The de-fanging of 17 U.S.C. § 512(f)

By J. DeVoy

When a university student performed fellatio in a photobooth at her sorority’s formal ball, she probably wasn’t thinking about copyright issues.  When the images were, unbeknownst to her, uploaded onto facebook, she probably wasn’t thinking about the fact that the person who captured the images took the rights, or the complexity of who may own the images, depending on how they were created, as we’ve seen before.  (The automatic upload of these images to facebook is very common for these services, and may be governed by their contracts with the entities holding the events where they provide services.)  She was probably embarrassed, and thinking about the fastest way to remove the images from the Internet, rather than the legally proper way of doing so.  She then enlisted a relative to send DMCA notices seeking the removal of these images.  The claims in this paragraph can all be sourced with some internet research, but individual names and links to outable information have been removed to protect the young-and-judgment-impaired.

Setting aside non-copyright issues, there’s very good reason to believe she did not own the copyrights to the images that regrettably wound up online.  Nevertheless, they’ve been almost completely scrubbed from the internet.  As Marc wrote almost a year ago:

I have seen my share of DMCA takedown requests that targeted clearly fair use or were used to simply take down material that the requester did not like (for example, alleged defamation) (source)

I have not seen the DMCA notices sent over these images.  It is theoretically possible, though I am quite skeptical, that she received a written assignment of those images rights as required by 17 U.S.C. § 204.  Without possessing some right in the image, a take-down notice would be improper under 17 U.S.C. § 512(c)(3)(A), and should be punishable under 512(f).  Or, at least it used to be.

We’ve previously written about Lenz v. Universal, one of few § 512(f) cases ever filed nationwide.  Recently, the Northern District of California handed down an order denying both Lenz and Universal’s cross-motions for summary judgment.  The order is here.    Of particular note, the Court held that pre-suit attorneys’ fees may be the basis for a claim, but loss of one’s time amounts to, at best, a nominal damage.  These are sufficient damages to assert a claim, as the Northern District previously held that requiring a plaintiff to demonstrate “those damages were economic and substantial would vitiate the deterrent effect of the statute.” Id. at 14.  Absent § 512(f)’s provisions for the recovery of attorney’s fees, there would be no economical sense to the claim.  While this has been long suspected among those familiar with the statute, this decision puts the final nail in the coffin.  And, while mandatory shifting of attorneys’ fees and costs is tempting and an incentive for counsel to take a case that otherwise would not make it to court, they can be recovered only at the end of litigation.  The Lenz v. Universal summary judgment order is docket number 459, and comes years after the parties’ dispositive motions.

While this limitation on litigation’s back end – recovery – is not necessarily fatal, it acts in tandem with a prior injury to § 512(f)’s front flank that renders the statute almost useless.  In Rossi v. MPAA, the Ninth Circuit read 512(f)’s provision that an improper DMCA take-down notice “knowingly materially misrepresent … that material or activity is infringing” to require subjective bad faith by the take-down notice’s sender. 391 F.3d 1000 (9th Cir. 2004).  There are cases where that can be done – however, if the case has to progress to trial for a jury to decide the whether the sender had subjective bad faith as a matter of fact, the threat of damages under § 512(f) loses much of its deterrent effect. (Query further the “deterrence” of a big, fat judgment against someone with no assets, no job, and no chance at obtaining either.)

There are cases where § 512(f) continues to work.  If a party is careless about broadcasting his or her intentions in sending DMCA take-down notices, he or she may be liable for attorneys’ fees and costs at the end of an action.  In fact, such a case could be resolved at summary judgment within just weeks of being filed.  However, the fact that courts have read so many conditions into § 512(f) limits the statute’s capacity for use as a sword against censorship, and gives the growing class of people who abuse copyright laws free reign to remove unflattering, lawful, or fairly used materials with impunity.

Whatever replaces the DMCA will be an even more tangled mess of legislation, followed by another decade of spirited litigation between parties large and small.  When that successor arrives, however, it hopefully will have stronger consumer-level protections than § 512(f).

H/T: Eric Goldman

Score Another One for Porn

By J. DeVoy

Pubic lice (better known as “crabs”) aren’t necessarily going extinct, but reported cases are way down due to brazilian waxing and the pubic grooming trends staked out by the porn industry.

Mandating Fatherhood

By J. DeVoy

Last night was the state of the union address.  I did not watch.  I was working and then at the gym.  The successful (and attractive, since there is a correlation) people I know have little use for politics, and I have come to agree with their position.  Sure, they care about broad issues like equality, the availability of birth control, and abortion, but the primary focus is always on self-improvement through developing new ideas, honing better skills and making more money.  These skills are desirable no matter who is in office (assuming, charitably, there is any difference between the political parties).  The minutiae of politics is for, and best left to, the trolls. You want to know who gets all excited about politics? This person.  Great company, I’m sure.

However, because of the scourge of social media, some exposure to the bread and circuses is inevitable.  From what I gleaned, the President made comments about the need to incentivize fatherhood.  This morning, I pulled the transcript of his speech to see the exact comments:

And we’ll work to strengthen families by removing the financial deterrents to marriage for low- income couples and do more to encourage fatherhood, because what makes you a man isn’t the ability to conceive a child, it’s having the courage to raise one. And we want to encourage that. We want to help that.

That’s ironic, since the state of the law over the last 30 or so years has had the opposite effect.  I don’t think low-income people are really obsessing over the marginal rates for married couples filing jointly versus filing as a head-of-household or filing separately while residing at the same address and potentially claiming the same dependents.

In reality, financial deterrents to marriage are the dual threshers of child support (which you can be incarcerated for not paying, and held in custody until payments are made – which creates an interesting catch-22 if you’re unemployed) and alimony.  How strong of a deterrent are these?  Considering the failure rate of all marriages is around 50%, it’s a pretty strong deterrent.  Ironically, the people more likely to be influenced by and understand statistics – and avoid marriage because of this deterrent – are generally higher-income and better educated than average.

There’s some dispute over what the divorce rate really is.  This is important, as it signals to men what their risk is of losing half of their assets, the chance of losing access to their children, and a radical downward shift in standard of living – even without considering all that emotional stuff.  A much-vaunted study says that a full half of all marriages will end in divorce, while other analyses show that first marriages are more likely to succeed, with subsequent marriages being more prone to failure.  Whether the total failure rate for all marriages is 50%, 40%, or even an unfathomably small 30%, guess what number is lower: The divorce rate for mail-order-bride marriages, which is only 20%.

The Center for Immigration Studies has found that 80% of these mail-order-bride marriages are successful.  U.S. Citizenship and Immigration Services had posted a study that drew significant attention until it was mysteriously removed, which read in part that “marriages arranged through [mail-order] services would appear to have a lower divorce rate than the nation as a whole, fully 80 percent of these marriages having lasted over the years for which reports are available.”  Still further research shows that these arrangements are not maintained out of fear, but genuine happiness; the bogeymen of spousal abuse and threat of deportment have no support in fact or law – U.S. law in particular goes to great extent to protect an immigrant spouse’s citizenship, even before it is finalized, unless it is procured fraudulently.

What we see here is the reality that mail-order-marriages carry a much lower risk than marrying a fellow American, and are less than half as likely to end in divorce and its ensuing asset-grab.  There are other deterrents that can be removed as well.  The federal government can eliminate or sand down the must-arrest requirements that many police departments have enacted in response to the Violence Against Women Act (“VAWA”), which provides for generous federal funding to police departments adopting these objectives.  The practical effect of VAWA’s adoption and resulting mandatory arrest policies has been to turn the prelude of every divorce into a psychological game where a wife tries to agitate her husband into hitting her, at which point he will be arrested and, as a scary and violent criminal, face a tough challenge in obtaining meaningful custody of his kids. (Forget the house; once he’s out of it and in jail, it’s as good as hers.)

Another deterrent to successful marriage  that could be removed is the International Marriage Broker Regulation Act, or IMBRA, which requires mail-order bride services to regulate and even restrict the speech of individuals who use their services.  Increasing the pool of people who can pursue marriages with better than a coin flip chance of success can only help the cause of fatherhood.

Other deterrents that I’m sure will go unaddressed: Maybe it’s not only the no-good-totally-evil men’s fault that divorce rates are so high.  More than a third of women are obese.  While there’s much noise made about how women are outnumbering men on campus and in obtaining bachelor’s and master’s degrees, little is said about the fact that they mostly get useless liberal arts degrees that come with lots of debt and little prospect for paying it off.  Student loans are only theoretically dischargeable in bankruptcy, so that debt is for life (while your spouse may not be).  And then there’s the cultural zeitgeist that it’s cool and braggable to be a self-identified “slut.”  As the saying goes, why buy the cow when you can get the milk for free?  I think most people would agree that these are unattractive qualities when evaluating a marriage partner, and especially one who can grab half of your present and future assets out of boredom.

If we want to remove the deterrents to fatherhood and the stable nuclear families that are highly correlated with growing, healthy societies, it won’t be through the tax code.  Instead, throw open wide the gates to Croatia and Ukraine.  Give Michelle Obama more air time to “fat-shame” and campaign against obesity at all ages.  Tie federal funds to states adopting more rational policies on alimony and child support, in much the same way the federal government cajoled the states to raise the drinking age to 21.  And stop assuming it’s solely fathers, rather than both parents, that have caused the broken family structure hollowing out America from its core.

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