Category Archives: Legal

Problems at the DuPage Housing Authority

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As part of a story about corruption at the DuPage Housing Authority, the Chicago Tribune provides an update on the recent history of the organization:

But investigators have asked plenty of questions lately about how DuPage housing officials spend the $22 million in federal funds they get annually.

Since 2009, the U.S. Department of Housing and Urban Development has audited the DuPage Housing Authority three times, concluding the troubled agency violated numerous federal regulations and must pay back $10.75 million in misused tax money.

HUD has determined DuPage must repay that money to its Section 8 housing program because it didn’t allow competition for projects, failed to properly document whether many tenants were eligible to get subsidized rent, made inappropriate credit card purchases and, in some cases, overpaid benefits.

This is not a whole lot of federal money, particularly in a county with a population over 900,000 and a poverty rate of around 6% (this site has 2009 figures of a poverty rate of 6.5% and the 2008 Census had an estimate of 5.8%). But the DuPage Housing Authority has an interesting history. If I remember correctly from research I have done, the group was formed in the 1940s and had some federal money to work with. But by the early 1970s, the Housing Authority had not built any units within the county and HOPE, an organization now in Wheaton, sued the county for housing discrimination, primarily for exclusionary zoning practices. The court case, Hope v. County of DuPage (the 1983 version here), lasted for over a decade and here is a brief summary of the conclusion in a law textbook.  It is only within recent decades that the Housing Authority has developed units.

This is perhaps not too unusual considering the political conservatism of a county that has been solidly Republican since the the 1860s. But as the lawsuit from the early 1970s alleged, the county has continued to change: more immigrants and minorities have become residents, housing values went up, a number of communities limited construction of apartments, and there are a good number of lower-paying jobs in wealthier communities. Add this all up and there are affordable housing concerns within a wealthy county and this extends beyond the common suburban debate about “work-force” housing for essential government employees like teachers or policemen or providing cheaper housing for young graduates and/or older residents.

Lobbynomics v. empirical data

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Ars Technica points to a UK report asserting that “lobbynomics” rather than empirical data drives much of the intellectual property policy debate:

There are three main practical obstacles to using evidence on the economic impacts of IP…[3] Much of the data needed to develop empirical evidence on copyright and designs is privately held. It enters the public domain chiefly in the form of “evidence” supporting the arguments of lobbyists (“lobbynomics”) rather than as independently verified research conclusions.

My own experience in dissecting IP developments supports this view.  It is surprisingly difficult to find “hard data” about copyright piracy, leaving any “debate” to a shouting match between proponents of bald assertions.

We need better data, and we all need to be more circumspect (and humble) before drawing sweeping conclusions from the little that is available.

Righthaven class action?

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Ars Technica is reporting that one Righthaven defendant is “launching a class-action counterclaim against Righthaven”:

BuzzFeed…quickly moves from a defense of its own conduct to an attack on the conduct of Righthaven, and it asks the judge to put every Colorado defendant into a class which can pursue Righthaven for extortion-style behavior.

I’m not sure that Righthaven’s behavior should be turned into some sort of perverse-reverse legal payday for defendants, but I suppose this was an inevitable development.

Assassination, Gaddafi, and Bin Laden

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Instapundit recently posted about how there has been general support for the assassination of Osama Bin Laden. Being involved in assassinations is a tricky area for the United States, particularly since we were implicated in some nefarious activity back in the 1950s through the 1970s (see the Church Committee report of 1975). Here how this has played out in recent days:

1. The recent attack on Gaddafi was intended to kill the Libyan leader. This is not the first time the US has attempted this with the earlier efforts coming in a bombing attack in 1986. This would seem to fit the classic definition of assassination: the killing of a foreign leader when his actions against the United States were not part of a larger war.

2. The recent killing of Bin Laden is being called an assassination by some but doesn’t seem to be in the same category. Bin Laden was not a political leader and I’m sure he had been named something like an “enemy combatant” by the United States. Because he was killed as part of a war effort (the “war on terror”) and he wasn’t a politician, this isn’t really an assassination. The problem comes in here when the media talks about assassinations as any attack on a prominent person. Not all such attacks are assassinations.

In both of these cases, people have made the argument that killing “the head” of the organization (al Qaeda or Libya) would be better than fighting a more traditional war. Perhaps so – but such actions might be against international law (see a quick discussion of the ambiguities here). And whether the killing of one person actually gets rid of larger, structural problems is another matter (witness the case of Iraq and the death of Saddam Hussein).

I recently thought of an example that illustrates some of the problems with assassinations or “targeted killings”: imagine that a foreign leader called for the killing of President Obama because of US actions around the world. I imagine that we would be fairly outraged: how dare another country threaten our voted-in leader. But is this much different than NATO leaders openly discussing killing Gaddafi?

The legality of using unsecured Wi-Fi

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At the end of an article about how it is possibly dangerous to have an open wireless router (watch out for criminals and police who bust down your door at odd hours!), an interesting issue is raised: is it illegal to use someone’s unprotected Wi-Fi?

Luchetti is not charged with using his neighbor’s Wi-Fi without permission. Whether it was illegal is up for debate.

“The question,” said Kerr, “is whether it’s unauthorized access and so you have to say, ‘Is an open wireless point implicitly authorizing users or not?’

“We don’t know,” Kerr said. “The law prohibits unauthorized access and it’s just not clear what’s authorized with an open unsecured wireless.”

In Germany, the country’s top criminal court ruled last year that Internet users must secure their wireless connections to prevent others from illegally downloading data. The court said Internet users could be fined up to $126 if a third party takes advantage of their unprotected line, though it stopped short of holding the users responsible for illegal content downloaded by the third party.

Sounds like an interesting legal area to explore. The article includes comments from one person who intentionally leaves their Wi-Fi unprotected in order to provide a “common good.” And the case from Germany suggests that one could hold the Wi-Fi owner responsible for any issues rather than the person who misused another person’s wireless access.

The $100k scholarly article

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The National Law Journal reports that, according to Hofstra University School of Law professor Richard Neumann, “a law review article written by a tenured professor at a top-flight law school” is “in the neighborhood of $100,000”:

His estimate factors in the salary and benefits for a tenured professor at a high-paying school who spends between 30% and 50% of his or her time on scholarship and publishes one article per year.

It also takes into account possible research grants, which many schools offer professors to help fund their scholarly work, and the costs for research assistants.

ABA Journal has additional coverage here.

It would be interesting to see cost estimates of academic writing in other disciplines to see how the law compares.  I’m guessing that law may be on the high end insofar as law professor salaries are generally higher than most other academics.

Righthaven’s contract unsealed; sanctions a real possibility

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Joe Mullin at paidContent has just posted a story about Righthaven’s previously sealed contract with Steves Media, parent company of the Las Vegas Review-Journal:

The contract reveals that the controversial copyright-enforcement company and the LV R-J are splitting their net earnings from suing hundreds of bloggers on a 50-50 basis. It also shows that the LV R-J is still largely in control of Righthaven’s litigation strategy—a fact that could end up being ruinous for Righthaven’s campaign of copyright lawsuits.

A link to the judge’s order and the contract is available here.  I’ll update this post when I’ve had time to read and analyze it thoroughly…

Update: After reading through the contract and order to unseal for myself, I think these are the most relevant sections:

Section 3.3

Stephens Media shall have the right to Notify Righthaven…that Righthaven should not take any Infringement Action with respect to a particular putative infringer.…Stephens Media shall only send any Declination Notice on a reasonable basis with the grounds of reasonability being that a particular putative infringer [1] is a charitable organization, [2] is likely without financial resources, [3] is affiliated with Stephens Media directly or indirectly, [4] is a present or likely future valued business relationship of Stephens Media or otherwise would be a Person that, if the subject of an Infringement Action, would result in an adverse result to Stephens Media.

I guess it’s safe to conclude that Stephens Media did not see fit to step in on behalf of the Center for Intercultural Organization (“a charitable organization”), Brian Hill (an autistic blogger who practically defines someone “likely without financial resources”), various newspaper sources (“affiliated with Stephens Media directly or indirectly”), or any of the hundreds of other bloggers (“likely future valued business relationship of Stephens Media”) Righthaven has sued.

Sections 7 and 8

Section 7.1:

Stephens Media shall effect the assignments to Righthaven of copyrights as required by this Agreement…by executing a particularized assignment with respect to each copyright and each consistent with (and in form and substance the same as) the scope of assignment….

Section 7.2:

Despite any such Copyright Assignment, Stephens Media shall retain (and is hereby granted by Righthaven) an exclusive license to Exploit the Stephens Media Assigned Copyrights for any lawful purpose whatsoever and Righthaven shall have no right or license to Exploit or participate in the receipt of royalties from the Exploitation of the Stephens Media Assigned Copyrights other than the right to proceeds in association with a Recovery.

Section 8:

Stephens Media shall have the right at any time to terminate, in good faith, any Copyright Assigmnent (the “Assignment Termination”) and enjoy a right of complete reversion to the ownership of any copyright that is the subject of a Copyright Assignment; provided, however, that if Righthaven shall have commenced an action to prosecute an infringer of the Stephens Media Assigned Copyrights, Stephens Media shall be exclusively responsible for effecting termination of such action including, without limitation, all Losses associated with any dismissal with prejudice.

Taken together, these three excerpts seem to affirm that Righthaven is essentially buying the right to bring lawsuits from Stephens Media, which is arguably impermissible under Silvers v. Sony Pictures Entertainment, Inc., 402 F. 3d 881 (9th Cir. 2005).

Section 11

Stephens Media understands and acknowledges that Stephens Media and Righthaven may be liable for an Infringer’s attorneys’ fees as required by Law in connection with an Infringement Action. Stephens Media further understands that a lawsuit brought solely to harass or to coerce a settlement may result in liability for malicious prosecution or abuse of process. If any Claim made by an Infringer in an Infringement Action results in Losses, other than Losses described in Section 8, Righthaven shall be solely liable for such Losses and shall indemnify Stephens Media from and against any such Losses but only if such Losses do not arise out of a misrepresentation by Stephens Media or other breach by Stephens Media of a provision of this Agreement.

I guess we now have incontrovertible evidence that both the newspaper and Righthaven knew “that a lawsuit brought solely to harass or to coerce a settlement may result in liability for malicious prosecution or abuse of process”!  I wouldn’t be surprised if this section gets referenced in a future sanctions order.

Conclusion:  what does Judge Hunt think?

It’s impossible to know, of course, what’s inside Judge Hunt’s mind.  However, his order to unseal the Righthaven contract strongly suggests that he is growing weary of Righthaven’s legal antics:

There is an old adage in the law that, if the facts are on your side, you pound on the facts. If the law is on your side, you pound on the law. If neither the facts nor the law is on your side, you pound on the table. It appears there is a lot of table pounding going on here.

There has been presented absolutely no basis to strike the Request to Unseal, and that motion will be denied. [emphasis added]

No doubt Righthaven is already sorry they filed this case.  The only remaining question is whether their sorrow will be measured in dollars.  And just how many.

When legal copying is illegal (or at least reversible)

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Eugene Volokh has a fascinating post re: how much judicial copying is too much:

Cojocaru v. British Columbia Women’s Hospital & Health Center — decided [14 April 2011] by a 3-judge panel of the B.C. Court of Appeal, the highest court in British Columbia — reverses a trial judge’s decision because,

In the case at bar, the reasons for judgment run to 368 paragraphs (105 pages) in length. The trial judge copied, without so acknowledging, 321 paragraphs almost word-for-word from the respondents’ written closing submissions (with inconsequential changes, such as replacing phrases like “it is submitted” with phrases like “I have concluded”). Forty paragraphs were written in the trial judge’s own words and the remaining seven paragraphs contain a mix of passages copied from the respondents’ written submissions and passages written in the words of the trial judge.

Now some sources have characterized the trial judge’s sin as “plagiarism”….

For his part, Volokh thinks the panel was correct to reverse the trial judge, though not because the copying constituted plagiarism:

[A]s the B.C. Court of Appeal panel majority understood it, [the problem] is that a judge is supposed to “independently and impartially considered the law and the evidence and arrived at his own conclusions on the complex issues before him,” and simply adopting hundreds of paragraphs of a party’s papers casts doubt on that. [emphasis added]

While Volokh acknowledges that judicial copying is sometimes appropriate, he still condemns the trial judge’s copying here, noting that

the judicial system tries to balance judicial engagement and efficiency.

I am not sure what to make of this proposed dichotomy between “judicial engagement” and “judicial efficiency”.  Doubtless, these two concepts can be in opposition along a continuum:  the more one “engages” with a case, the less “efficient” one’s decision-making process might be (and vice versa).

Just because “engagement” and “efficiency” can be in opposition, however, doesn’t necessarily mean that they are.  A judge could be exceedingly inefficient in rendering a decision (e.g., by personally handwriting the entire opinion with her non-dominant hand when both she and her clerk can think and type much faster) and also extremely unengaged (e.g., daydreaming all the while).  The relationship between the two concepts can be quite unclear.

Because of this uncertain logical relationship between “engagement” and “efficiency”, I humbly submit that it makes the most sense to inquire directly into whether the trial judge “engaged” with a case, not to use “copying” as a proxy for “efficiency” as a further proxy for “engagement.”

Indeed, dissenting appellate Justice K. Smith makes just such a direct inquiry here.  Smith turns to the underlying facts of this case to argue that

there are signs in the reasons that the trial judge applied his mind to the issues.

And here is the curious thing:  Justice Smith renders an exhaustive, 106-paragraph analysis of the trial court’s decision in the process of reaching and defending his position.  In stark contrast, majority Justices Levine and Kirkpatrick take merely 22 paragraphs to conclude

that there is no principled basis to deal with these appeals on their merits because the trial judge’s reasons for judgment cannot be considered to represent his reasons, do not meet the functional requirement of public accountability, and do not allow for meaningful appellate review. 

Perhaps I am being too hard on Levine and Kirkpatrick.  Perhaps opinion length is an equally unreliable proxy for engagement.  However, reading through the appellate opinions, I think that dissenter Smith “engages” far more than the majority justices.  His is not the most “efficient” judicial decision, but it does explain its reasoning far more thoroughly (and persuasively) than the majority’s arguably conclusory opinion.

Copying isn’t always bad, as Smith goes to great lengths to explain.  I’d love to hear a robust defense of the opposing position.  Unfortunately, as is so often the case, the anti-copying arguments here come up a little short.

YouTube’s copyright school

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In an apparent bid to prevent one-time copyright infringers from becoming two-timers (or more), YouTube has created a 4 minute and 39 second copyright school on its website, as explained on the official YouTube blog:

Because copyright law can be complicated, education is critical to ensure that our users understand the rules and continue to play by them. That’s why today we’re releasing a new tutorial on copyright and a redesigned copyright help center. We’re also making two changes to our copyright process to be sure that our users understand the rules, and that users who abide by those rules can remain active on the site.

If we receive a copyright notification for one of your videos, you’ll now be required to attend “YouTube Copyright School,” which involves watching a copyright tutorial and passing a quiz to show that you’ve paid attention and understood the content before uploading more content to YouTube.

Ray Dowd over at the Copyright Litigation Blog is not a fan, noting that Google:

  • fails to mention the existence of the public domain;
  • states that “[i]f you are uncertain as to whether a specific use qualifies as a fair use, you should consult a qualified copyright attorney”; and
  • fails to mention the Constitutional purpose of copyright law.

I have to agree with Ray.  The video’s section on fair use (direct link) is particularly egregious.  Unlike the rest of the video, this section adopts the sped-up vocal “style” often adopted at the end of radio commercials to breeze through legal disclaimers (e.g., “Sweepstakes only open to U.S. residents 18 or older…”)  How is this even attempting to educate and inform?

Far from providing a balanced view of copyright law, YouTube’s clear, bottom-line message is this:  Don’t remix or even approach the fair use line.  This is certainly one vision of copyright law, but there are others.  I am reminded of Christina Mulligan’s excellent blog post last June that looked at contemporary copyright law through the lens of Fox’s hit show Glee:

The absence of any mention of copyright law in Glee illustrates a painful tension in American culture. While copyright holders assert that copyright violators are “stealing” their “property,” people everywhere are remixing and recreating artistic works for the very same reasons the Glee kids do — to learn about themselves, to become better musicians, to build relationships with friends, and to pay homage to the artists who came before them. Glee’s protagonists — and the writers who created them — see so little wrong with this behavior that the word ‘copyright’ is never even uttered.

Lawrence Lessig makes the related point that such recreations benefit society, pointing to John Phillip Sousa’s early-twentieth-century fear that recorded music would eventually displace amateur performance entirely.

Google is taking a lot of heat from copyright owners these days, and it’s hard to blame them from trying to stave off any accusations of infringement that might eventually stick to Google itself.  Nevertheless, I don’t think their frenetic, one-sided “educational” video is the best solution.