Category Archives: Legal

Court says director of “The Queen of Versailles” did not defame film’s subject

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The director of an interesting film about the largest single-family home in the United States was cleared of defamation charges in court:

Lauren Greenfield received a best director nod at the 2012 Sundance Film Festival for her documentary, “The Queen of Versailles.” Now, two years later, she has another victory to her credit, which may ultimately prove more important to her career.

An arbitrator at the Independent Film and Television Alliance ruled that her movie about David and Jackie Siegel was not defamatory. This seems to end Siegel’s effort to punish Greenfield for her film, which centered in large measure on the family’s profligate ways — building a 90,000 square-foot mansion (to replace the 26,000 square-foot home they lived in); spending $1 million a year on clothing, and having a household staff of 19…

Siegel charged the film defamed him and his company. His claims were dismissed by a federal court judge, which is how the case ended up in arbitration.

“Having viewed the supposedly egregious portions of the Motion Picture numerous times, [the Arbitrator] simply does not find that any of the content of the Motion Picture was false,” the arbitrator, Roy Rifkin, ruled.

An unflattering but true story can still be told. But, if the story was not going to be positive, why participate in the first place or go through the whole process after things had turned sour? As I note in my quick review of the film, the story is less about the big house and more about what happens when someone loses lots of money and disconnects from his family. Also see a September 2013 update on the fate of the home.

The most profitable song is “Margaritaville”

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Copyrighting the words of “Margaritaville” as well as trademarking the name has been quite lucrative for Jimmy Buffett:

To think that all of this poured forth from a goofy, three-chord song—a mere 208 words, roughly half the length of this article—written about being lazy and getting drunk. But as Buffett’s Parrothead empire continues to spread, one can’t help but wonder whether a more lucrative song exists. “If there is anything on the same scale as a Margaritaville, it’s not a song—it’s a motion picture,” says Robert Brauneis, a professor of intellectual property at the George Washington University Law School and author of a research paper on Happy Birthday to You, which continues to generate upwards of $2 million a year. “When you’re talking about hundreds of millions of dollars, you have to think in terms of Star Wars, Winnie the Pooh, or Transformers. That’s probably in the same order of magnitude.”

As a recording, Margaritaville doesn’t post stratospheric numbers. After debuting on Buffett’s 1977 album Changes in Latitude, Changes in Attitude, it peaked at No. 8 on the Billboard 100 charts. According to the 2012 BBC documentary The Richest Songs in the World, Margaritaville doesn’t crack the top 10, which is populated by three Christmas songs. The two highest-ranking pop songs are You’ve Lost That Loving Feeling, by the Righteous Brothers, and Yesterday, by the Beatles. (No. 1 was Happy Birthday to You.) “If you want to get technical, there are two Margaritavilles,” says Brauneis. “There’s the copyright that protects the song, which is valuable because of the stream of income. Then there’s the trademark that has developed out of the song’s title, and legally that’s a different piece of intellectual property.”

Of course, this means the song and the brand are separate legal entities and could, in theory, be sold separately. But this isn’t the case. If you want to check Buffett’s tour dates, there’s no JimmyBuffett.com—there’s only Margaritaville.com, where his music career and the rest of his empire are seamlessly melded into one site.

“From a larger business perspective, when you combine the two and look at what the song stands for as a lifestyle and as a branding vehicle,” says Brauneis, “it’s worth far more than Happy Birthday. I can’t think of another example of a song that has that total impact.”

The key here is not really the song itself but the business opportunities the song has led to. This is spectacular branding: Buffett and others have created a sellable lifestyle out of the song and there has been a willing set of consumers willing to eat at the restaurant, buy merchandise, and go to concerts. It is hard to imagine a “Yesterday” themed restaurant – the song is really sort of sad – or one centered around “Happy Birthday” as this is an event that only comes around once a year. Indeed, it would be interesting to see how other artists have tried to capitalize on individual songs and the outcomes of those ventures. Is there any other song that could potentially lead to such financial opportunities? Is this a future source of income for musical artists?

A summary: “driverless cars are ‘probably’ legal”

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An economist takes a look at existing law and argues driverless cars are probably legal:

Over at the blog Marginal Revolution, economist Tyler Cowen points to a recent research paper by Bryant Walker Smith, a fellow at Stanford Law School, who has made the legality of driverless cars his bailiwick. In offering “the most comprehensive discussion to date of  whether so-called automated, autonomous, self-driving, or driverless vehicles can be  lawfully sold and used on public roads in the United States,” Smith argues that driverless cars are “probably legal.” He concludes [PDF]:

Current law probably does not prohibit  automated vehicles — but may nonetheless discourage their introduction or complicate their operation.

Unlike many journalists and policy-makers, Smith begins his analysis with a presumption of legality instead of illegality. “Until legislators, regulators, or judges definitively clarify the legal status of automated vehicles, any answer is necessarily a guess,” he writes. Smith’s own guess turns on three “key legal regimes”: the 1949 Geneva Convention on Road Traffic, National Highway Traffic Safety Administration regulations, and vehicle codes in the 50 U.S. states.

Smith doesn’t think that any of these regimes expressly prohibits driverless cars. The Geneva Convention says a driver must be able to control a vehicle at all times, but that stipulation is probably satisfied if a human can override the automatic operation. N.H.T.S.A. rules don’t explicitly rule out driverless cars either — though an odd rule saying hazard lights must be “driver controlled” might be a sticking point.

States codes, meanwhile, “probably do not prohibit” driverless cars in Smith’s mind, but they do complicate the situation. Right now these codes all naturally presume the presence of a human driver; in New York, for instance, there’s a rule that drivers must keep one hand on the wheel at all times (who knew?) that could become a problem in an automated-vehicle world. Additionally, laws dictating a certain following distance might interfere with algorithms that keep driverless cars close together on the road.

Sounds like an interesting loophole – why worry about whether it is legal when you can instead ask whether it is illegal? I still think a lot of the issue with driverless cars comes down to people, both “drivers” (now people who can override the car’s autopilot when they want) and other people on the road around the driverless cars, adjusting to the change. If it is like other modern technologies, like smartphones, and drivers realize they might be able to do other things while driving, perhaps the switch may be quick.

Another thought: could driverless cars and electric cars end up prolonging and even extending urban sprawl? If commuting is easier and consumes fewer resources (still debatable considering what it takes to produce batteries), why not continue it?

A lack of automatic penalties for a New York City driver hopping the curb and killing a pedestrian

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Sarah Goodyear highlights an interesting legal area: New York City drivers whose cars kill pedestrians on the sidewalk do not automatically receive penalties.

In New York, unless the driver flees the scene (as happened in the Queens case mentioned above) or is intoxicated, crashes that kill pedestrians rarely result in criminal charges. “No criminality was suspected” is the mantra of the NYPD when it comes to pedestrian and cyclist deaths in general. The tepid police response to traffic deaths is even more jarring when applied to cases in which the vehicle actually leaves the roadway and enters what should be inviolate pedestrian space…

I talked to Steve Vaccaro, a lawyer who frequently represents victims of traffic crashes and is an outspoken advocate for pedestrian and bicyclist rights in New York City, and asked him to explain how running your vehicle up onto a sidewalk crowded with pedestrians can be seen as anything other than reckless. He explained to me that recklessness is in the eye of the beholder.“The standard for criminal charges is that the risk you take has to be a gross deviation from the risk a reasonable person would accept,” he says. “It’s about the community norm.”

And the community norm is to accept the explanations proffered by drivers such as the one who killed Martha Atwater – who, according to an unnamed police source quoted in the news, said he had suffered a diabetic blackout. Other drivers are let off the hook after simply “losing control” or hitting the gas instead of the brake. The ease with which pedestrian deaths are accepted by police as just unfortunate “accidents” has led to a deep cynicism among many observers of street safety in New York.

Shouldn’t the community norm instead be an understanding that if you drive your car in such a way that you end up on the sidewalk in the middle of one of the world’s most pedestrian-rich environments, you have somehow failed in your responsibility as a driver? Obviously, there are extreme circumstances, such as mechanical failure, in which a driver is not in any way at fault. But why are we so quick to dismiss the mayhem caused by motor vehicles as inevitable?

Seems odd to me. Frankly, pedestrians are not that protected on sidewalks. The speed and size of cars means the short jump up to the sidewalk isn’t much of an obstruction. But, perhaps this shouldn’t be too surprising considering how much Americans love cars and how much cities have been redesigned to accommodate cars.

This reminds that New Urbanists often make this argument about their neo-traditional designs for narrower streets that allow street parking and both sides and trees in the parkways. These conditions both slow down drivers, which could give pedestrians more time to react, and also provide barriers between drivers and pedestrians. Better that drivers who lose control hit inanimate objects than also harm other people in the process.

A downtown law firm no more

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A law firm in Austin, TX is leaving its downtown location for the suburbs:

Law firm Bowman and Brooke LLP [website] is vacating its current location at 600 Congress Ave. and heading to more suburban digs southwest of downtown [about 6 miles away, map here]….“Yes, price was a consideration but we’re not getting a tremendous difference in rent costs. There are other things that entered in like tenant improvement costs, and parking had a significant impact,” [Michelle Bailey, chief of operations] said.

The company had no parking allocation downtown and at its new location it will have 96 complimentary spaces for 44 employees — more than enough.

The article notes that “finding large blocks of office space [in downtown Austin] is somewhat akin to going on a treasure hunt” and suggests that lawyers “are now being challenged for territorial rights by emerging technology and energy firms.” In other words, plenty of businesses still want a downtown presence, and rents are being bid up by new entrants. This sounds more like a story of urban revival than suburban sprawl to me, though the two are clearly linked here.

Perhaps a more fascinating revelation, however, is Bowman and Brooke determination that it “wasn’t necessary for its attorneys to be downtown, close to other law firms and courthouses” because “[w]e tend to be a national firm with our attorneys flying all over the country” and “we don’t have a lot of local interaction.” What does it mean to practice law without significant local interaction, especially when one is “a nationally recognized trial firm that defends corporate clients in widely publicized catastrophic injury and wrongful death claims“? While simply having a downtown (rather than a suburban) office location may do little to humanize a corporate law firm, it seems telling that Bowman and Brooke seems to place such a low priority on engaging its local community.

Leader in Texas adverse possession movement hasn’t been successful yet

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The adverse possession advice being peddled through a Texas man’s website and e-book hasn’t exactly worked out yet:

If you direct your browser to 16dollarhouse.com and plunk down $9.97 for an e-book, you can still learn from Ken Robinson ( “poised, measured, insightful and wise” and an AMERICAN, all caps, as the site informs you) how to use adverse possession, a once obscure Texas law, to get a house on the cheap.

Be forewarned that Robinson’s legal theories haven’t worked out so well in practice. Earlier this year, he was evicted from his $350,000 Flower Mound McMansion after a judge decided that his claim to the house was bullshit. His disciples have fared little better.

Following news of Robinson’s scheme, officials in Tarrant County made the rounds evicting squatters who moved into homes after filing adverse possession claims. Eight of them were charged with theft or burglary.

David Cooper was the first to go to trial, which wrapped up today…

But Texas law also says you can’t steal people’s stuff and, in Cooper’s case, the house actually wasn’t abandoned. It belonged to a couple who were spending a lot of time in Houston, where the wife was undergoing cancer treatment. When it became clear that the home wasn’t abandoned, Cooper was arrested and charged with burglary and theft.

See more about the ruling on Robinson’s Flower Mound case here.

This would be an interesting protest movement that someone like Occupy Wall Street might want to take up: identify and then occupy Texas houses.

Republicans propose copyright reform

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Techdirt links to a remarkable Republican policy brief on copyright reform:

The purpose of copyright is to compensate the creator of the content: It’s a common misperception that the Constitution enables our current legal regime of copyright protection – in fact, it does not…[L]egislative discussions on copyright/patent reform should be based upon what promotes the maximum “progress of sciences and useful arts” instead of “deserving” financial compensation….

Today’s legal regime of copyright law is seen by many as a form of corporate welfare that hurts innovation and hurts the consumer. It is a system that picks winners and losers, and the losers are new industries that could generate new wealth and added value.

This has the potential to mark the beginning of a huge political shift on intellectual property issues. Heretofore, most copyright reform advocates have pursued a judicial strategy, trying to persuade courts to narrowly read (or overturn) sweeping statutory language. By and large, courts have declined to limit copyright laws in this fashion. If those laws were actually changed, however, that would compel different outcomes.

A policy brief is not even a bill, let alone a law. But the conversation has started.

Colbert shines light on U.S. prison labor

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A recent segment on the Colbert Report has brought attention to Unicor, a U.S. government entity designed “to employ and provide job skills training to the greatest practicable number of inmates confined within the Federal Bureau of Prisons”:

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Forcing people to work jobs that pay as little as $0.23/hour seems disconcertingly tantamount to slavery.  And it’s probably important to note at this juncture that the 13th Amendment simply does not apply to prisoners:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction [emphasis added].

The U.S. also imprisons more people than any other country on earth, and minorities are disproportionately likely to be incarcerated (see, e.g., this December 2011 DOJ report, see especially Table 3 in the appendix).  Taken together, this state of affairs is alarming.  To put it mildly.

 

Activist charged for downloading millions of JSTOR articles

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Many academics use databases like JSTOR to find articles from academic journals. However, one user violated the terms of service by downloading millions of articles and is now being charged by the federal government:

Swartz, the 25-year-old executive director of Demand Progress, has a history of downloading massive data sets, both to use in research and to release public domain documents from behind paywalls. He surrendered in July 2011, remains free on bond and faces dozens of years in prison and a $1 million fine if convicted.

Like last year’s original grand jury indictment on four felony counts, (.pdf) the superseding indictment (.pdf) unveiled Thursday accuses Swartz of evading MIT’s attempts to kick his laptop off the network while downloading millions of documents from JSTOR, a not-for-profit company that provides searchable, digitized copies of academic journals that are normally inaccessible to the public…

“JSTOR authorizes users to download a limited number of journal articles at a time,” according to the latest indictment. “Before being given access to JSTOR’s digital archive, each user must agree and acknowledge that they cannot download or export content from JSTOR’s computer servers with automated programs such as web robots, spiders, and scrapers. JSTOR also uses computerized measures to prevent users from downloading an unauthorized number of articles using automated techniques.”

MIT authorizes guests to use the service, which was the case with Swartz, who at the time was a fellow at Harvard’s Safra Center for Ethics.

It sounds like there is some disconnect here: services like JSTOR want to maintain some control over the academic content they provide even as they exist to help researchers find printed scholarly articles. Services like JSTOR can make big money by collating journal articles and requiring libraries to pay for access. Thus, someone like Swartz could download a lot of the articles and then avoid paying for or using JSTOR down the road (though academic users are primarily paying through institutions who pass the costs along to users). But what is “a limited number of journal articles at a time”? Using an automated program is clearly out according to the terms of service but what if a team of undergraduates banded together, downloaded a similar number of articles, and pooled their downloads?

If we are indeed headed toward a world of “big data,” which presumably would include the thousands of scholarly articles published each year, we are likely in for some interesting battles in a number of areas over who gets to control, download, and access this data.

Another thought: does going to open access academic journals eliminate this issue?

21st century problem: “Who inherits your iTunes library?”

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If you have made a will, don’t forget to include your digital music and ebooks:

Someone who owned 10,000 hardcover books and the same number of vinyl records could bequeath them to descendants, but legal experts say passing on iTunes and Kindle libraries would be much more complicated.

And one’s heirs stand to lose huge sums of money. “I find it hard to imagine a situation where a family would be OK with losing a collection of 10,000 books and songs,” says Evan Carroll, co-author of “Your Digital Afterlife.” “Legally dividing one account among several heirs would also be extremely difficult.”

Part of the problem is that with digital content, one doesn’t have the same rights as with print books and CDs. Customers own a license to use the digital files—but they don’t actually own them…

Most digital content exists in a legal black hole. “The law is light years away from catching up with the types of assets we have in the 21st Century,” says Wheatley-Liss. In recent years, Connecticut, Rhode Island, Indiana, Oklahoma and Idaho passed laws to allow executors and relatives access to email and social networking accounts of those who’ve died, but the regulations don’t cover digital files purchased.

Another reason to buy the physical version if you really like the music or book.

Thinking more broadly, this extends to a whole host of digital content. What happens to your Facebook information if you die? Your Dropbox account? Accessing your email? Stories about these circumstances tend to stress the lack of formal legal or corporate agreement of what should be done. How about a “dead digital user bill or rights”?