The kittens kicked ass on Hollywood, and Hollywood, like every frustrated bully, is sounding like a sore loser. Big liberals that they are, the Big Wheels of LA of course thought they’d paid in advance to grease SOPA’s passage through the legislative process. The MPAA had put silver-haired ex-Senator Christopher Dodd in position as the head of the Organization last year, replacing silver-haired Jack Valenti, with a nice post-Senatorial salary of $1.3 Million per year.

Pity the fool, though, who stands between term-paper-pressured students and their Wikipedia.  The Wikipedia / Reddit blackout, backed with Google’s black banner campaign, knocked what Dodd had no doubt assured the Big Wheels of the motion picture industry was a lock, right out of the winner’s circle.

The final insult came when the White House issued a statement of non-support.  Dodd went ballistic, brandishing a threat to withhold Hollywood’s campaign largesse from politicians who failed to queue up hat-in-hand and make known their support for entertainment industry-friendly legislation.  Speaking on Fox News after SOPA/PIPA were given the bum’s rush out of the Congressional precincts, Dodd said:

Those who count on quote ‘Hollywood’ for support need to understand that this industry is watching very carefully who’s going to stand up for them when their job is at stake. Don’t ask me to write a check for you when you think your job is at risk and then don’t pay any attention to me when my job is at stake.”

As Techcrunch noted:

People were protesting not just because of the content of these bills, but because of the corrupt process of big industries like Dodd’s “buying” politicians and “buying” laws. To then come out and make that threat explicit isn’t a way to fix things or win back the public. It’s just going to get them more.

My Vote!

Well, truer words were never spoken. If Dodd had Internet heartburn on Friday, as of Sunday night, as I write this post, he’s approaching something closer to full cardiac arrest.  Dodd’s threats galvanized the opposition and personalized the battle, that some folks are apparently happy to carry to him.  Yesterday, on January 21st, somebody fired up a Petition at WhiteHouse.gov to Investigate Dodd for Bribery ! About a half-hour ago, I took a break from writing this post and became signer number 14,172, and I took a screencap to prove it.  Then I went back to see how fast things were moving, and another 519 people had signed, for a total of 14,691, so people are signing at the rate of about one every six seconds.  When signer number 25,000 clicks “SIGN THIS PETITION,” it will automatically become an issue to which the White House will issue an official response, according to the rules of the game.  At that point, Christopher Dodd will become political kryptonite, and as you know, President Obama, being Superman, does not play with kryptonite.

Now let us not be coldhearted.  A human being is suffering here. But the question is whether we should be asked to sacrifice our freedom of speech, and the functionality of the Internet that we apparently want to preserve as a common resource of communication and experience, in order to end Christopher Dodd’s pain.  I for one, vote “NO,” and there are two reasons: first, the goal of strengthening the statutory monopoly of copyright holders is not a “compelling state interest,” and second, the means Congress proposed to use in SOPA are not the “least restrictive means” of achieving that goal.  These two reasons are the ones that have caused the United States Supreme Court to overule Congressional speech regulations even when the stakes are high – like preventing children from viewing “indecent material” and “harmful matter.”  In Reno v. ACLU, the Court struck down the “Communications Decency Act,” explaining its ruling as follows:

At issue is the constitutionality of two statutory provisions enacted to protect minors from “indecent” and “patently offensive” communications on the Internet.  Notwithstanding the legitimacy and importance of the congressional goal of protecting children from harmful materials, we agree with the three-judge District Court that the statute abridges “the freedom of speech” protected by the First Amendment.

Why?  The reason was simple.  In the process of screening out the offensive content, too much inoffensive content is blocked:

A statute that “effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another … is unacceptable if less restrictive alternatives would be at least as effective in  achieving the legitimate purpose that the statute was enacted to serve.”

SOPA would clearly violated this principle that requires Congress to use the “least restrictive” means to accomplish what must be a “compelling state interest.”  Janet Reno was defending the CDA, and she lost.  It fell to John Ashcroft to defend COPA the Child Online Protection Act, and he lost, too, in Ashcroft v. ACLU, where the Court explicitly held that filtering software would be more effective, and less restrictive, than criminalizing the operation of a website that transmitted “harmful matter.”  This was even though the Court took it for granted that restricting the production and distribution of child pornography was a “compelling government interest.”  On June 29, 2004, the Court issued an opinion that illuminates where the analysis would take the litigants:

The … test does not begin with the status quo of existing regulations, then ask whether the challenged restriction has some additional ability to achieve Congress’ legitimate interest. Any restriction on speech could be justified under that analysis.  Instead, the court should ask whether the challenged regulation is the least restrictive means among available, effective alternatives.

In the case of COPA, the “status quo” of regulation, was of course that producing and distributing obscenity and child pornography were already quite illegal, felonious acts; whereas in this case, SOPA would create new crimes and civil penalties for vague offenses.  Matthew Lasar at ArsTechnica, writing on this same topic, has culled some of the vague new crimes conceived by Hollywood lawyers for swift passage through the email accounts of Senatorial staffers and immediate uploading to the digital printing presses of the Congressional Record for publication as newly-minted sections of the United States Code.  At least, until the kittens threw a monkey wrench into the machinery.  But for the kittens, SOPA would already have passed, and the law would currently define a site as “dedicated to theft of US property” if it:

• Is primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed
  by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates [violations of various sections of US copyright law].

• Or:
• Is taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out acts that constitute a violation [of US copyright code].

• Or:
• Operates the U.S.-directed site with the object of promoting, or has promoted, its use to carry out acts that constitute a violation.

Whereas the line between pornography and non-pornographic communication has always been fuzzy, with Justice Stewart famously defining it by saying, “I know it when I see it,” these SOPA-crimes are masterpieces of legislative skullduggery, clearly products of the lobbyist’s pen.  Could these legal stylings ”pass constitutional muster” in the first instance, or are they clearly void-for-vagueness?  You be the judge.  I submit that it would be difficult to disprove the accusation that you had taken ”deliberate actions to avoid confirming a high probability” of anything!  When, for starters, does the “high probability” arise?  And once it does, how am I to know?  And what must I do to not avoid confirming?  Must I confirm?  And if so, only upon demand, or must I do it proactively, in order to avoid the charge of avoiding confirmation?

Moving beyond the particular, to the general purpose of SOPA, that everyone is more comfortable talking about, what is the law meant to do, and how does it propose to do it?  The goal of the law is to strengthen the enforcement mechanism of the copyright holder’s statutory monopoly.  The law would do that by differentiating between two types of speech – that which is being lawfully trafficked by the monopolist and his authorized agents, Hollywood and its minions, and that which is being illegally traded by unauthorized persons.  The first category of speech is lawful, the second category is contraband.  SOPA would enhance penalties for dealing in contraband speech, and it would force companies that transmit speech to act as censors, making it illegal to transmit contraband speech.  Note that contraband speech is already illegal material, just like marijuana, except that Hollywood moguls like marijuana, so they are not trying to enhance penalties for possession of marijuana like they are for possession of non-Hollywood-authorized movies and music.

I suppose Congress can probably make criminal penalties for possession of contraband movies and music as stiff as they want, stiffer than laws for bank robbery or rape, and the Supreme Court would never find that unconstitutional unless they actually made infringement of copyright a capital offense.  Even then, who knows?  People can bear almost anything, and the Supreme Court seems to think they should.  But corporations, ah, they’ve got First Amendment rights as large as their bank accounts, and as we know from Citizens United, those bank accounts are very large, so their First Amendment rights are equally humongous.  And it’s the First Amendment rights of Google to transmit all of that speech that will be interefered with if SOPA forces Google to police links.  And it’s the First Amendment rights of innumerable ISPs and communications transmitters that will be involuntarily pressed into service as customs agents to separate out contraband content from legitimate content, blocking functioning websites in faraway lands, as directed by lawyers at their terminals, copying and pasting links from sites they think are infringing.  And of course, at the end of a long line of communications transmitters, would be the hundreds of millions of eyeballs of users, enjoying the thin gruel of strained content that remained after it passed through the Hollywood seive.  I don’t know about you, but that seems like a pretty restrictive way to accomplish something that may not be really all that important — not anywhere near as important as protecting children from being used in child porn productions.  It is the copyrighted-entertainment industry that is after this law – after all – an important industry, but not the be-all and end-all of our economy.  And certainly entertainment is not the altar upon which we should sacrifice precious rights of free communication that enable political discussion and self-governance.  I’m afraid that Christopher Dodd has picked entirely the wrong kittens tangle with. 

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A Non-Disclosure Agreement (“NDA”) is a very useful tool to maintain trade secrecy, which in California is defined as information that “has independent value based upon its not being generally know,” that the owner has “taken reasonable steps to keep secret.”  Accordingly, using NDAs to protect real trade secrets is essential, because if you sue for misappropriation of trade secrets, you will have to allege and prove that you took “reasonable steps to maintain secrecy,” and of course, showing the judge that you always required people to sign NDAs will help you prove that.

Take note, this means that an NDA could help you win your case against a person who didn’t sign one! How? Assume that someone hacks into your email and steals a secret business plan you sent to all your salespeople, who of course all signed NDAs. You can now pursue the data thief, because you can easily prove that the matter was a trade secret, and not just “something you sent to all your salespeople.”

The person usually asking the question “Must I sign this NDA?” is of course often on the other side of the question.  They are being asked not to disclose what is about to be revealed to them.  To determine whether to sign or not to sign, two questions need to be answered:

First, is the NDA reasonably precise, so that it will not put unreasonable limits on your ability to communicate what you learn?

Second, is the NDA mutual, so that it will provide protection for any protectable ideas or information you may disclose?

Here, just for example, is a tightly-constructed NDA that covers the disclosure of a secret marketing plan. (Charles-Carreon-Non-Disclosure-Agreement)

This NDA, offered by the hypothetical Pickwick Productions, LLC to a theoretical “Prospect” does the following:

·        Specifically identifies the matters that will be disclosed in paragraph 3;

·        Contracts to disclose these secrets in exchange for the promise to keep them secret in paragraph 5;

·        Limits the use that Prospect can make of the information in paragraph 6; and,

·        Prescribes the type of “active diligence” that Prospect must exercise to prevent disclosure in paragraph 7.

Mind you, the good thing about a properly-made agreement is the same thing that is good about a bespoke suit — it fits perfectly.  So please don’t take this and try to adapt it without consulting me.  Just contact me and let’s talk about it.  Click here to send me an email: http://www.charlescarreon.com/submit-case/

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Dear Congressman Giffords, Sen. McCain, and Sen. Kyl:

The people of this nation and the of the rest of the entire world are attempting to recover from the financial damage caused by the largest fraud in history — the nationwide mortgage fraud scam pursuant to which hundreds of thousands of utterly fraudulent mortgages were packaged into “AAA” bonds and passed off to investors worldwide.  This letter addresses the latest efforts by the criminals to evade all civil and criminal liability for their acts.

The Damage Done

The mortgage fraud that spanned the last decade not only crashed the domestic and the world economy, it destroyed American financial credibility and has lead to a chorus of calls from the international monetary community to force the dollar from its powerful seat as the world’s reserve currency.

Criminal Bankers Acting With Impunity

Thusfar, the rule of law has fared ill, for this crime was apparently committed with virtual impunity by criminals operating from the nation’s banking centers.  The SEC, that dropped the ball on the Madoff Ponzi scheme, has now been shown to have been systematically destroying the evidence of fraud compiled in every investigation it has conducted for the last 17 years.  http://tinyurl.com/3v3l3fn The FBI has not seriously mounted an investigation into the nationwide, decade-long, mortgage fraud crime wave, having gutted its financial fraud enforcement post-911, leaving the nation open to systematic plunder by criminal bankers.  The DOJ has not prosecuted a single banker for mortgage fraud.  The Congressional investigation conducted by Mr. Garamendi has produced nothing of note.

The Obama Administration Pressuring The New York AG

New York Attorney General Eric Schneiderman can use the Martin Act to pursue state law criminal and civil claims against the perpetrators, but Obama’s HUD Secretary Shaun Donovan, and Eric Holder’s DOJ are pressuring NYAG Schneiderman to grant immunity to the perpetrators as part of a settlement of claims being pressed by States Attorneys General across the nation.  http://tinyurl.com/3qxczgc This outrageous federal interference with the process of law must end.  First, banks should not pay to immunize criminals within their employ from criminal consequences.  Second, the settlement proposed provides no meaningful remedy for the economic devastation wreaked by the financial crime wave of the last decade.  (See August 24, 2011 letter to Sec. Donovan and various Attorneys General from Americans For Financial Reform regarding the insufficiency of the proposed settlement.  http://tinyurl.com/5seqevy)

Homeowners Take The Hit

Why is the Obama Administration’s HUD and DOJ doing this?  Because “the banks mustn’t take a hit.” If the banks took a hit, it would injure our financial stability.  This is like saying, “Don’t disturb the thief or he’ll start robbing you again.”  The banks have not taken a hit.  The mortgage-holders of America, who bought houses at inflated prices with low teaser interest rates that exploded through the roof have taken the hit.  But with inflated principal amounts and exploded interest rates, it’s impossible for many homeowners to make their mortgage payments.  The voluntary mortgage modification program that Treasury pushed as a justification for killing Sen. Dick Durbin’s April 2009 Bill, that would have restored the homeowner’s right to cram down their mortgage in bankruptcy, has produced pitifully few modifications.  Despite all the billions the banks were given in the bailout, and the additional billions in near-free, zero-interest-rate funds they’ve received through the Fed’s “Discount Window,” banks will not refinance homes at pre-crash valuations, nor will they lower interest rates to current low levels.  Thus, many homeowners are forced to walk away from their homes, causing values to continue to plummet and home sales to stagnate.

The response of the banks?  To create more fraudulent documents.  Unwilling even to pay for the labor to process mortgage foreclosures honestly, fraud mills run by unscrupulous bank lawyers have been churning out “robo-signed” affidavits that turn our courts into assembly-line foreclosure and eviction systems where one boot kicks all homeowners straight out of their homes without even the semblance of due process.

To Stabilize Banks, Clean Them Up By Convicting Criminal Bankers

Bank stability is not preserved by preserving bankers who approve making fraudulent mortgages, who trade in phony “AAA” bond derivatives and credit default swaps, who demand a rescue package to pay themselves bonuses, and run foreclosure mills greased with phony affidavits. This sort of “banking” destroys financial stability!  It’s time to stop talking about “banks making mistakes,” and start talking about “bankers committing crimes.”  Using false appraisals and loan applications to lend to people who can’t pay is a crime.  Forging foreclosure affidavits is a crime.

Although banks, i.e., corporations, are used to perform these acts, corporations are imaginary entities that don’t make plans.  Corporations can’t feel, therefore they can’t be punished, just like “Arthur Andersen” couldn’t be sent to jail.  Jeff Skilling, the Enron CFO, went to prison.  He was a criminal, like Mike Milken, Ivan Boesky and Charles Keating, who went to prison in the eighties.  Remember?  Actually, about another 1,000 people went to jail because of the S&L fraud.  It’s time it happened again.

Distinguishing Criminal Bankers From The Banks That Employ Them

We must distinguish between banks and the criminals they employ so that banks can cleanse themselves of criminality and again be worthy of public trust.  First, banks should not take a financial hit because of the criminal conduct of their employees and officers, unless top managers had knowledge of and approved the criminal conduct.  Second, all of the individuals within the bank who approved the criminal conduct acted criminally in violation of their official duties, and thus the banks have a right to recover any losses caused by that criminal conduct.  Third, in order to continue operating as federal regulated and insured financial entities, banks must separate themselves from the prior conduct of the criminals they have employed.  Fourth, banks should not pay fines so that criminals like Anthony Mozillo, former Countrywide mortgage fraud czar and current highest-paid B of A employee, can sleep well on a mattress stuffed with other people’s money.

Unfortunately, the banks have been taken over by criminals, who have aborted the necessary, cleansing self-examination that happens when a company learns that criminals have infiltrated their business.  Taking the Bank of America again as an example, the B of A is clearly not governed by an independent Board of Directors.  If it were, the Directors and Officers would want to run Mr. Mozillo out of their operation, and disavow his acts as unauthorized violations of his employment duties.  Certainly that is what they do when low-level employees commit crimes like theft of personal data and embezzlement.  Ah yes, but those crimes cost the bank money.  When criminals make money for the bank it is quite different. Then, the bank hires lawyers to defend its priceless executive criminals, and negotiates with prosecutors to pay stockholder money to immunize them from prosecution.  Then, the bank pays the criminals more bonuses.

The Corrupting Effect of Criminal Bankers On Government

Why do banks nurture criminals in their organizations?  Because only criminals are willing to make money by abusing  bank charters, borrowing money from the Federal Reserve at the lowest interest rates in our nation’s history, investing that money in the stock market and derivatives to generate quick profits, and using campaign contributions to corruptly influence Congress, the Administration, and every lesser form of governmental authority.  Criminal bankers use the government’s own money to subvert the law, and when graft is not enough to accomplish their goal, they hold the economy hostage with threats to demand more money to avert yet another bank collapse.  With these tactics, criminal bankers persuade the very Department of Justice itself to plead for leniency on their behalf with the New York State Attorney General.

We must end the upside-down insanity of letting criminals run banks backstopped with limitless federal funding.  These banks are not too big to fail.  We here in the heartland know the truth.  The banks are simply too powerful to regulate.  The spectacle of criminals in the high seats of financial power, aided by governmental corruption, is breaking the heart of this once-great nation.  Willie Sutton is surely spinning in his grave, wishing with all the larceny in his bank-robber’s heart that he could be born in this era and get an MBA in Finance, so he could really go “where the money is.”

My point is made and I trust you were convinced before I began.  Please use your bully pulpit to tell Mr. Donovan, Mr. Holder, and President Obama to stand aside while a real prosecutor does his job.  No more sweetheart deals for criminals in the name of financial stability.

It is worth noting, in closing, that AG Schneiderman’s posture is politically powerful.  He has received thousands of dollars in unsolicited campaign contributions in small amounts as an expression of spontaneous support.  There can be no better barometer of public approval.

For the good of the nation, and with the wholehearted approval of your constituents, please use your authority as my representative to demand that the Obama Administration back off and let AG Schneiderman do his job.

With sincere regards,

Charles Carreon

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New Jersey Supremes Will Interpret News-Shield Law

January 31, 2011

The long-running lawsuit between John Albright and Too Much Media v. Shellee Hale over whether Hale is immune from liability for defamation under the New Jersey Newsperson’s Shield Law has hit the New Jersey Supreme Court and will be webcast tomorrow at 10 am EST.

Here’s the link to the webcast: http://www.judiciary.state.nj.us/webcast/webcast.htm

Hale is represented by Jeff Pollock, a prominent 1st Amendment lawyer whose father was himself a New Jersey Supreme Court Justice.  Hale started her legal odyssey as a Seattle-area mom who became curious about the online porn industry (bitten by the legal bug, she has now acquired a license as a private-investigator).  Hale found herself in legal hot water after she started blogging about the consumer-unfriendly behavior of the online porn industry.  Sued by Too Much Media and its owner John Albright in a New Jersey libel lawsuit,  Hale — who claims her blogging activity was privileged under the New Jersey Newsperson’s Shield Law — is about to get a hearing on her argument from the state’s highest court.

Hale’s troubles started back in August 2006, when an unhappy user of TMM’s “affiliate-program tracking software,” sued TMM for cutting off service, allegedly causing the collapse of the user’s company. Hale, who was studying the grey areas of the adult industry, found the New Jersey lawsuit fertile ground for online discussion, and posted about it on her now-defunct Pornafia.com blogsite.  While one can imagine a jury enjoying a good laugh at the notion that someone who services the porn industry could actually be “defamed,” TMM,  Albright, and his partner Charles Berrebbi claimed they’d lost status in “the industry,” and, effectively, cried all night.  Their attorney Joel Kreizman, himself a New Jersey judge, made the Seattle blogger the target of a New Jersey lawsuit, and demanded that she give her deposition and disclose the identity of her sources.

With Pollock representing Hale, she objected to appearing at the deposition, refused to disclose her sources, and claimed immunity from suit.  But in a June 30, 2009 trial court ruling, the trial judge held that Hale wasn’t entitled to assert the Newsperson’s privilege and ordered her to attend her deposition.

Pollock appealed, but was unsuccessful in his effort to overturn the trial court ruling. He is now taking his third run at the issue, and if he wins, bloggers will enjoy greater protection from libel laws, at least in the great state of New Jersey … a trend that would likely spread … so for lovers of freedom of speech, this is one to tune in to. If the New Jersey justices lay it straight over the plate, I’m betting Pollock is going to knock out the lights.

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ELECTION HUMOR — Posted October 25, 2010

The current political environment has spawned some strange denizens during the last ten years.  Here is a list I have recently compiled of flora and fauna that truly challenge the imagination.

The Century Bird

A giant buzzard that believes itself to be a noble predator. It prospers greatly in times of war, and is most concerned with feathering its own nest.

Retreat-Ants

A species of ant that occupies whole countries. Known for making elaborate preparations to depart, their numbers nevertheless continually increase. Impossible to eradicate.

Rouge-Barb

A strange carnivorous plant that originated in Alaska. Now growing outside its native range, it assumes the shape of an attractive human female. The Rouge-Barb’s soft, fleshy exterior covers a network of killing spikes. Encountered only in the wild, it is primarily a hazard to lonely hunters, who attempt to embrace it, only to be impaled on its spikes — a truly horrifying spectacle.

Sneerons

Thriving only in captivity, and like sloths in appearance, these creatures live entirely on the food provided by their masters, and make disgusting faces if offered anything else. In times of hunger, they will consume the feces of their own kind.

Snits

Snits are small, furry creatures that defend against incursions to their territory by falling on the ground, rolling in apparent mortal agony, and accusing the interloper of being the cause of their suffering. Snits are related to Snorts, that use a similar gambit to scare off intruders — huffing and puffing in an appearance of taking great offense at the temerity of the interloper for daring to question the integrity of their home-ground.

The Pumpadillo

A small, leathery bird that puffs itself up to enormous size and becomes airborne by inflating itself with intestinal gasses. Once on the wing, the Pumpadillo emits a nauseating simulation of human speech from its anus. Pumpadillos primarily unleash their gaseous effluvia in explosive, expletive-laced rants, but also enunciate clearly and pride themselves on pronouncing long words like socialism. If questioned, they fall back on repeating three proper names — “Obama, Pelosi, and Reid,” interspersed with noun-phrases like “big government,” and “federal reserve,” often capped with a commanding imperative statement like, “take back your country!” Pumpadillos can actually be programmed by commercial sponsors as well, and generate advertising revenue. Recently Pumpadillos have greatly grown in population, thanks to the foolish listeners who feed them.

The Murd-Roc

An immensely powerful bird, of which there is only one, born from a mysterious cybernetic egg found in Australia. The Murd-Roc flies so high that it roosts on satellites. It hypnotizes whole populations with its electronic eyes, and repeatedly terrifies all who hear it with horrible shrieks that have the power to invoke visions of imminent disaster. The true intentions of the Murd-Roc are unknown, but to the extent they correspond to its methods, the prognosis for human survival is not good.

The Brewer-Bird (AKA Border Coot)

This ungainly bird is a native of the southwestern states with strange habits. The Brewer-Bird is easy to photograph, because although gregarious among its own kind, it often freezes and falls silent if a camera is pointed in its direction. Best known for its loyalty to defending borders, real or imagined, the Brewer-Bird can be confined to any area by drawing a line in the dirt, which it will defend tirelessly. If enclosed in a circle, it will walk around the inside perimeter to the exclusion of all other activity. For reasons best known to itself, the Border Coot has a morbid fear of being beheaded, even though it does not taste at all like chicken.

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Can I Sue Facebook?  A Fictional Scenario

The prospective client walks in and sits down and asks the lawyer: “Can I sue Facebook?”

The lawyer asks, “What did Facebook do?”

The prospective client says.  “Facebook terminated my account, which might have been because I was associated with an anti-BP group that also got terminated.  When I tried to get it turned back on, they said it was because I had ‘targeted people because of their physical characteristics,’ which is bizarre, since I have never done that.”

The lawyer says, “Hmmm…” wishing she were changing a diaper or doing something else rewarding and enriching.

Then the prospective client says, “Look, I have these five pieces of green paper here that each bear a remarkable likeness of Andrew Jackson on them, with the number ’20′ printed in three corners on the front side, and a nice engraving of the White House on the other side, and if I just put them on your desk here, would you tell me if you think I have a case?  Don’t do any research, just answer the question to the best of your ability, please.”

While not ordinarily given to venal impulses, the lawyer thinks that this question can be answered in fifteen minutes, which pencils out to the same as her hourly rate, so she scoops up the Federal Reserve Notes thus placed on offer, and says, “For that amount, you are entitled to a written opinion, with the caveat that it is made without research.  To research it, I need another twenty of those nice little pictures of Andrew Jackson, or four pictures of Ben Franklin.”

The person, who has now become a client, responds, “Let’s just stick with what we can get for five Old Hickories.”

The lawyer turns to her desktop keyboard and begins to write.

< ![endif]–>

The lawyer turns to her desktop keyboard and begins to write. A half-hour later, after noting that she has once again underbid a job by fifty percent, she spellchecks and prints this legal opinion.

MEMORANDUM

September 26, 2010

From: Lemmie Adam

To: Ivan Justice

Re: Can You Sue Facebook?

What Rights Are You Trying To Enforce?

You want to sue Facebook. Assuming that you have any rights at all against Facebook, the rights that you would like to enforce can be described as:

1. The right not to have your speech rights terminated because you expressed views that Facebook wanted to suppress.
2. The right to not lose control over photographs.
3. The right to notice before you’re deprived of access to your photographs.
4. The right not to be accused of obscure rules violations like targeting people for their physical characteristics.

Would A Court Enforce Any of These Rights?

Enforceable rights in this situation might arise from four sources:

• The Bill of Rights
• Contract
• Statutory / Regulatory Law
• Case Law / Common Law

The First Amendment Will Not Help You

Let’s start with the Bill of Rights. The First Amendment forbids the government from engaging in censorship, but private parties like Facebook are under no such restriction. So the Bill of Rights isn’t going to help you here.

You Do Not Have An Enforceable Contract for Continued Accounts Access or Preservation of Photographs

Since most relationships between private parties in commerce are regulated by contract, next I’ll consider this: “Did you have a contract that obligated Facebook not to terminate your account without notice?” A contract is a legally enforceable obligation arising from the voluntary assumption of corresponding duties by two or more parties supported by “consideration.”  Consideration is something of value, i.e., money.  It’s clear you paid no money to Facebook; therefore, you very likely have no enforceable rights at all with Facebook.

But let’s just see what the Facebook Terms of Service say.

The Terms of Service don’t promise anywhere that you will have continued access to your Facebook account. So Facebook had no duty to keep your account open, and you have no contractual claim against them for shutting it down.

Additionally, it provides for termination for violating the “spirit” of the Terms of Service, which might allow them to terminate you for saying things that would cause them to be sued:

“If you violate the letter or spirit of this Statement, or otherwise create risk or possible legal exposure for us, we can stop providing all or part of Facebook to you. We will notify you by email or at the next time you attempt to access your account.”

So if your activities, such as political speech, caused risk of liability to Facebook, they would have the right to terminate your account.

In summary, I see no breach of contract remedy for you.

You May Have A California False Advertising Claim

Let’s look at statutory remedies under California law, which is what would apply to Facebook, based on its “choice of law” provision in the Terms of Service (quoted below). California False Advertising law under California Business & Practices Code Section 17500 provides that it is unlawful for anyone to negligently or knowingly make an “untrue or misleading statement” to “induce the public to enter into any obligation” to “perform services.” Generally, a statement can give rise to liability if “it is probable that a significant portion of the general consuming public or of targeted consumers, acting reasonably under the circumstances, could be misled.”

The Terms of Service incorporate the Facebook Principles that suggest you should be able to keep your photographs even if your account is terminated:

“People should own their information. They should have the freedom to share it with anyone they want and take it with them anywhere they want, including removing it from the Facebook Service.”

It is therefore just possible that this statement could be interpreted as a promise to provide you with the means to recover your photographs, even if Facebook shuts your account down. The question of course would be whether this was an inducement intended to get you to enter into “any obligation,” to acquire Facebook services, since you didn’t pay to join the website.

Assuming that large numbers of people have permanently lost photographs or other content, this could conceivably warrant a class action. However, there are many slips between the cup and the lip, and without very dedicated attorneys ready to put hundreds of hours into the litigation, and with substantial resources to satisfy the complex requirements of class action practice, the case would likely be a waste of time for all concerned.

You Would Have To Sue In Santa Clara County, California

The Terms of Service have a “choice of law” and “choice of forum” clause that states:

You will resolve any claim, cause of action or dispute (“claim”) you have with us arising out of or relating to this Statement or Facebook exclusively in a state or federal court located in Santa Clara County. The laws of the State of California will govern this Statement, as well as any claim that might arise between you and us, without regard to conflict of law provisions. You agree to submit to the personal jurisdiction of the courts located in Santa Clara County, California for the purpose of litigating all such claims.

This provision will very likely be enforced.  Lawyers in Santa Clara County, California who could handle this type of case are very rare, so be prepared to be disappointed in your search for local unless you can peel off a mighty big stack of Dead Presidents or have extraordinary luck.

You May Have A Conversion or Trespass To Chattels Claim

If photographs are deemed to be “chattels,” i.e., items of personal property, and Facebook is deemed to have accepted the duty to care for the photographs, you could have a claim for conversion or trespass to chattels for the permanent or temporary deprivation of possession. What would such a claim be worth? You have probably suffered primarily sentimental loss due to photographs of personal importance. You might have some argument under the famous California case of Windeler v. Sheers, 8 Cal.App. 844 (1970) that, by agreeing to store photographs of sentimental value, Facebook exposed itself to liability for the emotional injuries arising from their loss. If Facebook were able to restore access to the photographs, of course, you would not have a conversion claim, but rather a trespass to chattels claim, i.e, a temporary deprivation of possession of personal property.

Facebook Has A Liability Limitation

Facebook has quite likely limited its liability to a maximum of $100:

WE WILL NOT BE LIABLE TO YOU FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS STATEMENT OR FACEBOOK, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR AGGREGATE LIABILITY ARISING OUT OF THIS STATEMENT OR FACEBOOK WILL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT YOU HAVE PAID US IN THE PAST TWELVE MONTHS.

Summary

You may have a statutory claim against Facebook for false advertising, or a common law claim for conversion or trespass to chattels. These claims would be of nominal value, possible presenting a situation of “no damages,” which would defeat the claims altogether. If a substantial number of other persons have been similarly deprived of access to their photos, a class action is conceivable; however the costs of pursuing such a claim would require well-heeled, dedicated consumer activist-type lawyers to pursue them. The claims would have to be filed in Santa Clara County Superior Court, as they are not likely to meet the stringent standards for a Federal class action for a number of reasons too complex to explain in this brief memorandum.

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All Google Needed Was An Effective Takedown System to Reach the Safe Harbor

In granting summary judgment against Viacom on the grounds that Google was a legitimate Online Service Provider with an effective takedown system, and therefore entitled to receive the benefit of the DMCA “Safe Harbor” under 17 USC 512(c), the District Court cites copious amounts of legislative history establishing that without the safe harbor, the Internet might not grow robustly.  (Download PDF) Google’s general knowledge that there was a whole lot of infringement happening on YouTube didn’t mean that it was obligated to start screening for infringing content or hunting it down once it was posted, because their job is just to have an effective takedown system to remove content once the creator tells them it’s infringing.  The burden of discovering infringing content never shifts to the Online Service Provider, and it’s always the copyright holder’s job to find it and identify it by URL.  The court said:

Mere knowledge of prevalence of such activity in general is not enough. That is consistent with an area of the law devoted to protection of distinctive individual works, not of libraries. To let knowledge of a generalized practice of infringement in the industry, or of a proclivity of users to post infringing materials, impose responsibility on service providers to discover which of their users’ postings infringe a copyright would contravene the structure and operation of the DMCA.

YouTube Is DMCA-Friendly, Napster Was Not

The court also held that even though YouTube technology made it easy to infringe, that didn’t make it like Grokster or Napster, because those were systems that were designed to foment piracy.  This is an interesting distinction, because creating a video bazaar where everyone knows you can find stolen content doesn’t seem that different from creating a file sharing system where everyone knows you can create stolen content, but it’s different in one important way — Napster and Grokster never went around deleting content, and had no mechanism that would allow a copyright holder to locate where the content was and send a takedown notice.  This really means that some technology is DMCA-friendly (YouTube-style video communities) and some is not.

Ad Revenue From Tainted Traffic Is Pure

The court rejected the argument that Google should lose the DMCA safe harbor because it was generating ad traffic by having a site that in general, contains a lot of infringing content.  This part of the opinion isn’t very satisfying.  The court seems to be finessing the issue when it says:

The safe harbor requires that the service provider “not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity ” § 512(c) (1) (B). The “right and ability to control” the activity requires knowledge of it, which must be item-specific.There may be arguments whether revenues from advertising, applied equally to space regardless of whether its contents are or are not infringing, are “directly attributable to” infringements, but in any event the provider must know of the particular case before he can control it.

That’s a distorted reading of “right and ability to control.”  Google has the right and ability to delete every single video on the whole site, or to just turn it off altogether. Google has the right and ability to delete every single video on the whole site, or to just turn it off altogether.  To say they have no “ability to control” infringing videos until they know that they are infringing is like saying I can’t control my appetite until I know the caloric content of my food.  If I were Viacom, not that I want to be Viacom, I would tell my lawyers to appeal on the grounds that the district judge distorted the meaning of the statute here.  After all, the court admitted that Google was working the system:

From plaintiffs’ submissions on the motions, a jury could find that the defendants not only were generally aware of, but welcomed, copyright-infringing material being placed on their website. Such material was attractive to users, whose increased usage enhanced defendants’ income from advertisements displayed on certain pages of the website, with no discrimination between infringing and non-infringing content.

Let The Creator Beware

If Google can generate ad revenue by taking in every kind of content without distinction, and make money on the infringing attractions, then Google can “work the float,” and always have enough infringing content to keep its blood pressure up at the expense of copyright holders.  The only way that content owners can act proactively is by implementing digital “fingerinting technology” through the “Claim Your Content” system that Google uses as its only screening mechanism.  Fingerprinting your content is not, however, cheap.  So what this opinion seems to announce is a doctrine of “Caveat Creator,” let the creator beware.

Will The Real Free Speech Provider Please Stand Up?

Please don’t take me for a copyright hawk, but this seems like a ruling that benefits a company that has made a habit of turning other people’s work into their payday, and is being encouraged to keep on doing it.  Meanwhile, real free, nonprofit libraries that have no advertising revenue, are discouraged from putting the works in their archives on the Internet where scholars and researchers can use it for fair use purposes, because publishers do not respect the fair use protections of 17 USC 107 (the Library Exemption from copyright infringement liability).  I am currently defending the American Buddha Online Library against a suit from Penguin, and although I won on jurisdictional grounds in New York District Court, Penguin appealed, and the Second Circuit court of appeals is now asking the New York State Appeals Court to take a look at the issues and see if something better can be worked out for Penguin by tweaking New York state law.  I am doing this case pro bono, because I’ve been well acquainted with the director for many years, but few libraries have a handy intellectual property lawyer to handle their cases.  So true freedom of speech on the Internet is getting suppressed by copyright lawsuits while Google gets to keep minting money by working the DMCA like a money pump.  Nice work if you can get it.

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Meanwhile, Microsoft is hedging its bets, releasing an app called “Tag” in both the iPhone App Store and in Android Market.  According to the New York Times, “Microsoft’s Tag technology allows you to use your phone as a mobile barcode reader. You simply point your phone’s camera at a tag (think: a smaller QRCode), snap a picture, and the Tag program will interpret it. This can be used to place things like coupons in physical locations, for example. ”

And as ZDNet reported, over in Europe, the EU Antitrust regulators have received complaints about Google rigging search results to favor its own businesses, a misfortune for which Google blames Microsoft:

Google Feb. 23 said three Web companies have filed complaints with the European Commission alleging that the search engine is demoting their Websites in Google search results and not respecting fair competition.

The European Commission, the antitrust body for the European Union, received complaints from UK price comparison site, Foundem, a French legal search engine called ejustice.fr, and Microsoft’s Ciao from Bing, a product shopping site.

While the Commission said it has not opened a formal review of Google over these complaints, Google denied the allegations and pointed to search rival Microsoft as the possible instigator.

And as reported in Wired, Google has of course returned the favor by joining in the EU Antitrust complaint against Microsoft:

The Internet company joins the Mozilla foundation, producer of the Firefox Web browser, and Norway’s Opera, a privately held company. Google adds the voice of a significant and well-financed player in the case against Microsoft.

In January, European regulators brought formal charges against Microsoft for abusing its dominant market position by bundling its Internet Explorer Web browser with its Windows operating system, which is used in 95 percent of the world’s personal computers.

Many people are likely to say, well if all three accuse each other of illegal conduct, probably none of it is true.  But here’s a hypothetical for you.  Suppose all three are telling the truth, and like Apple says, Google really is rolling its OS out on a platform that infringes Apple patents, and like Microsoft says, Google really is rigging search results, and as Google says, Microsoft really is using monopoly power to maintain a lock on the browser market?  Where is the consumer in the midst of this three-way orgy of market dominance.  Can anybody spell Fustercluck?

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Charles Carreon USPTO Trademark Registration # 3,749,709

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January 28, 2010

With even the President sounding off about the Supreme Court’s people-unfriendly decision in Citizens United v. Federal Electoral Commission, it seems like a safe time to share this little gem that I discovered while completing my Continuing Legal Education requirements.  While listening to several CDs of audio from the National Association of Criminal Defense Lawyers, I was spontaneously regaled by this hilarious recording – APPOINTED FOREVER – that Gerald Lefcourt used to preface his presentation.  Here are the hilarious lyrics:

Imagine me as God, I know I do

It feels so right

To be a federal district judge and know that I’m

Appointed Forever!

I was annointed by the President

And revelation told him I was heaven-sent.

And Congress in their wisdom granted their consent.

Appointed forever!

I’m a federal judge and I’m smarter than you

For all my life!

I can do whatever I want to do

For all my life!

Bring to me discovery

No matter what the issue is, I guarantee,

Somebody will be sanctioned as the penalty,

And there’ll be no error.

My decisions cannot be questioned by you

I’m always right

And my wise discretion is never abused

For all my life

Think of me as royalty

When you appear before me

Fall upon your knees

Even at the very worst,

If you take me up to get reversed,

You’ll have to get the Circuit Court to hear you first,

And that takes forever

Appointed Forever

Employed Forever

Appointed Forever

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