Category Archives: Legal

British sociologist wins case against reviewer

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Reviews are a key part of the academic world as researchers, journalists, and others assess and judge the work of others. Within this world, a British court recently sided with a sociologist who had sued a reviewer:

A High Court judged ruled that Lynn Barber’s 2008 review of Seven Days in the Art World by Dr Sarah Thornton, a noted sociologist, was “spiteful” and contained serious factual errors. The Telegraph Group, owner of The Daily Telegraph, which published the article, has been ordered to pay Dr Thornton £65,000 in damages.

While the country’s critics regard such factual errors as justifiably punishable, the case still raises questions for scribes who have grown accustomed to saying what they like about whomever they please…

There is a long history of critical clashes. The most high profile are necessarily those that end up in court. In 1998 the journalist and TV presenter Matthew Wright “reviewed” the play The Dead Monkey starring David Soul, calling it “without doubt the worst West End show”. The chink in his armour was that he’d never actually seen it, and Soul won £30,000 in a libel case.

Sometimes, the clashes are less clear cut. One anonymous arts critic told The Independent about three legal threats that had recently landed across his desk, none of which ended up in court, incidents he described as “shots across the bows”. To avoid such clashes, critics may find it necessary to limit how often they tackle certain subjects. “My view is that a critic has to be honest and say what he or she likes,” said Brian Sewell, art critic at the London Evening Standard.

The story suggests there two components to the lawsuit: “spiteful” comments and factual inaccuracies. I imagine the case was decided in the sociologist’s favor mainly due to the factual errors in the review (which didn’t have to do with the book but about what the reviewer said about an interview with the author) rather than the critical comments which are common in reviews.

The case reminds of how I heard one academic describe reviews: they are opportunities to knock down other researchers and if you are gracious or perhaps even neutral in a review, it can be interpreted as a sign of weakness. Reading some reviewers (academic or journalistic), it is sometimes hard to imagine they would be happy with anything.

A growing interest in acquiring property through “adverse possession”?

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I highlighted a story last week about a Texas man who hoped to become the owner of a $350,000 McMansion through “adverse possession.” One writer suggests there is a growing interest in this method of acquiring land:

People have been making adverse possession claims for decades. The most famous cases happened on the Lower East Side of Manhattan in the 1980s and ’90s, when artists, punks and homeless people squatted in vacant buildings and brownstones.

Under the law at the time in New York State, people could take possession of a property if they lived there for ten years and made efforts to “cultivate and improve” the property, says Kathy Zalantis, a real estate lawyer with Silverberg Zalantis in White Plains, NY. That’s why you saw people who did this during the 1980s and ’90s mowing the grass, planting trees and gardens, and making structural improvements to the buildings themselves, Zalantis says.

Now, interest in adverse possession is growing again. Across America, hundreds of thousands of homes are sitting empty. If you live in New York or have visited since 2008, you’ve probably noticed all those big empty buildings that were constructed during the housing boom but never quite finished, and are now sitting empty. Zalantis says she’s receiving a big surge in phone calls from people who have taken up residence in empty spaces (yes, squatting), including one just this Wednesday.

Most of the calls are from people taking advantage of the foreclosure crisis by moving into vacant houses, apartments and condominiums where the foreclosure process has stalled in the courts, Zalantis says. Now they’re living rent-free. And they’re checking to see if they can take permanent ownership of the place.

It seems like two things are key then to acquiring property by this method: being in the building for a certain amount of time (which appears to vary by state) and doing something to maintain/improve the property. I assume, however, that the rightful owners can come back to the property and kick out the squatters. Therefore, shouldn’t someone who pursues this be pretty sure that the current owners have such little interest in the property that they are willing to lose ownership?

In the case of a lot of single-family foreclosures, I can’t imagine banks would be willing to simply write off their losses and lose these properties. However, if housing prices continue to drop, perhaps some institutions will be willing to lose properties rather than devote resources to trying to squeeze some money out of these homes.

Still on the road after all these years

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In light of the recent heat wave, Derek Thompson over at The Atlantic asks why more people don’t telecommute:

The answer might have more to do with psychology than economics. Even if we’re technically more productive at home, we feel more conspicuously productive at work. You might think a recession would lead to more telecommuting since it reduces overhead and increases work hours. Instead, telework among the formally employed has slowed in the last three years.

Thinking back through my personal experience, this strikes me as correct. In the past, I’ve held several jobs that I could telecommute into, but I always felt like my time was suspect since it couldn’t be obviously verified by showing up to the office. For all of the inconveniences of commuting, at least I clearly received “credit” for my office appearances.

Happy birthday to all

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Over at Slate, Paul Collins has published an interesting analysis of the validity of Warner Music Group’s $2 million-dollar-a-year copyright claim to “Happy Birthday”:

“It is almost certainly no longer under copyright,” [George Washington University law professor Robert Brauneis] concludes in his study [link], “due to a lack of evidence about who wrote the words; defective copyright notice; and a failure to file a proper renewal application.”

So why do people keep paying up to perform a public domain song?

Insurers, for one: The insurance necessary on film financing often requires that litigation be avoided by paying all permissions fees. And even without that barrier, it’s simply cheaper to pay the bill than it is to fight Warner.

Nothing new here.  Monopolists can’t really be blamed for acting like monopolists.  What’s more interesting about  Collins’ article is the role increasingly comprehensive digital archives are playing into this research:

Google Books and Google News, though, practically burst with “Birthday” clues….It might just be a matter of time—plus the right bit of scanning in a database—before [proof that the copyright is invalid] turns up. And if it ever does, Warner Music may find their $40-million birthday cake left out in the rain.

Now there’s something that we could all celebrate…

A unique way to acquire a McMansion: “adverse posession”

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Amidst many foreclosures across the country, one Texas man believes he has found a way to acquire a suburban McMansion for $16. The move involves invoking “adverse possession” to take possession of the $300,000 home:

“This is not a normal process, but it is not a process that is not known,” he said. “It’s just not known to everybody.”

He says an online form he printed out and filed at the Denton County courthouse for $16 gave him rights to the house. The paper says the house was abandoned and he’s claiming ownership…

But, Robinson said just by setting up camp in the living room, Texas law gives him exclusive negotiating rights with the original owner. If the owner wants him out, he would have to pay off his massive mortgage debt and the bank would have to file a complicated lawsuit.

Robinson believes because of the cost, neither is likely. The law says if he stays in the house, after three years he can ask the court for the title.

It will be interesting to see how this plays out as it would require someone, the true owner, the bank holding the mortgage, or the government, to move this guy out. It is funny that the neighbors seem to be the ones leading the charge against this guy: are they simply jealous that he was able to acquire a home for this little money?

But perhaps this story hints at a positive side effect of the foreclosure crisis: states and other governmental bodies get a chance to review all sorts of laws regarding mortgages, foreclosures, and housing possession.

Nevada opens path to driverless cars

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Even though driverless cars are not a common product yet, Nevada has opened a legal path for driverless cars on the road:

Assembly Bill 511, the first such legislation in the country, allows the state’s Department of Transportation to draw up rules that would authorize driverless cars. The regulations would include safety standards, insurance requirements and testing sites.

A driverless car is defined by the bill as using “artificial intelligence, sensors and global positioning system coordinates to drive itself without the active intervention of a human operator.” That includes technology such as lasers, cameras and radar…

Stanford University robotics professor Sebastian Thrun, a project leader on Google’s effort, said that nearly all driving accidents are due to human error rather than mistakes by machines.

“Do you realize that we could change the capacity of highways by a factor of two or three if we didn’t rely on human precision on staying in the lane but on robotic precision, and thereby drive a little bit closer together on a little bit narrower lanes and do away with all traffic jams on highways,” he said in a speech at the TED 2011 conference this spring.

So how long until this becomes a reality? It seems like we have been hearing about these possibilities for years. Here are a few things that could be holding up the process:

1. The legal side of things. Perhaps Nevada is really a pioneer here and will get the ball rolling.

2. The technology is not quite ready yet. It doesn’t sound like this is the issue.

3. We were waiting for a few companies to really push this. It is interesting that Google seems to be getting a lot of the attention. Obviously, their main business is not driverless cars but they had the resources and interest.

4. The cultural side: are people ready to see driverless cars on the road? Even if they are proven to be safer, will people accept them quickly or will it take some time?

Lack of protection for confidentiality in oral histories

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Sociologists and other researchers can offer confidentiality in consent forms but whether this promise would stand up in court is another question:

Researchers who conduct oral history have no right to expect courts to respect confidentiality pledges made to interview subjects, according to a brief filed by the U.S. Justice Department on Friday.

The brief further asserts that academic freedom is not a defense to protect the confidentiality of such documents.

With the filing, the U.S. government has come down firmly on the side of the British government, which is fighting for access to oral history records at Boston College that authorities in the U.K. say relate to criminal investigations of murder, kidnapping and other violent crimes in Northern Ireland. The college has been trying to quash the British requests, arguing that those interviewed as part of an archive on the unrest in Northern Ireland were promised confidentiality during their lifetimes…

Many historians have been backing Boston College in the case. Clifford M. Kuhn, a historian at Georgia State University who is a past president of the Oral History Association, filed an affidavit on behalf of Boston College in which he said that if Britain’s request is granted, the field of oral history could be damaged.

This is part of a long-running battle involving researchers and courts. Some of this is covered in the 2000 piece “Don’t Talk to the Humans.” When I’ve used this particular article in class, students always ask why researchers don’t have the same legal rights regarding confidentiality that journalists have.

Whenever these sorts of cases pop up, it always seems like we get the slippery slope argument: if they start with oral histories, how long until there is no confidentiality in other forms of research? In the meantime, we’ll have to see whether this goes beyond just this one brief.

h/t Instapundit

Reversing Righthaven

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The court system issued another stunning rebuke of Righthaven and its business model, as an Electronic Frontier Foundation press release reports:

In a decision with likely wide-ranging impact, a judge in Las Vegas today dismissed as a sham an infringement case filed by copyright troll Righthaven LLC. The judge ruled that Righthaven did not have the legal authorization to bring a copyright lawsuit against the political forum Democratic Underground, because it had never owned the copyright in the first place. [emphasis added]

This is a big win for bloggers, and the news gets even worse for Righthaven:

As part of his ruling today, the judge ordered Righthaven to show why it should not be sanctioned for misrepresentations to the court.

More coverage at Techdirt.

I guess we’re starting to get that copyright law clarity I was hoping for…

Foreclosure as legal remedy

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Digtriad.com reports about a Florida couple who foreclosed on a bank (yes, you read that right):

It started five months ago when Bank of America filed foreclosure papers on the home of a couple, who didn’t owe a dime on their home.

The couple said they paid cash for the house.

The case went to court and the homeowners were able to prove they didn’t owe Bank of America anything on the house. In fact, it was proven that the couple never even had a mortgage bill to pay.

Not surprisingly, homeowner Maurenn Nyergers ran up some costly legal bills defending herself against Bank of America’s egregious mistake, and the judge quite reasonably ordered BoA to pay Nyergers’ legal fees.  This is where things got interesting:

After more than 5 months of the judge’s ruling, the bank still hadn’t paid the legal fees, and the homeowner’s attorney did exactly what the bank tried to do to the homeowners. He seized the bank’s assets.

Additional coverage (and pictures) at the Daily Mail.

Lots of news and blog commentators are talking about this story with phrases like “sweet justice” and “very satisfying”, but I think several other lessons can be drawn from this story.

1.  Foreclosure is a very powerful legal remedy.  Cash can disappear, cars and boats can move, but land and buildings (generally) stay put.  Nothing gets an owner’s attention like the prospect of losing their real estate.  It’s amazing how fast BoA paid up once they realized a local branch was threatened.

2.  Foreclosure is open to everyone.  “Equal justice under law” is sadly an ideal not always present in the real world.  Nonetheless, this story illustrates how anyone owed money can use it to get paid.  “The system” does sometimes work!

3.  “An ounce of prevention is worth a pound of cure.”  Consider all of the opportunities BoA had for this to be a non-issue:

  • They could have double-checked their paperwork to see if a mortgage existed before filing a lawsuit.
  • They could have double-checked their paperwork after filing their lawsuit.
  • They could have settled quietly with the homeowner after they realized their error instead of forcing a court to rule against them.
  • They could have paid their bill quickly to avoid further embarrassing publicity.

Instead, of course, BoA has created a national news story that makes it look disorganized, bullying, and a deadbeat.

Can you hear the people sing?

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Brian pointed me to an article at the Chronicle of Higher Education about Lawrence Golan’s Supreme Court fight against copyright expansion:

The dispute that led to Golan v. Holder dates to 1994, when Congress passed a law that moved vast amounts of material from the public domain back behind the firewall of copyright protection. For conductors like Mr. Golan, that step limited access to canonical 20th-century Russian pieces that had been freely played for years.

Re-copyrighting works isn’t a technical or minor matter.  It has a huge effect of performing musicians like Golan:

When a work is in the public domain—that Puccini opera, say—an orchestra can buy the sheet music. Symphonies typically cost about $150. And the orchestra can keep those pages forever, preserving the instructions that librarians laboriously pencil into scores. But works under copyright are typically available only for rent. And the cost is significantly higher: about $600 for one performance. With the flip of a switch, the new law restored copyright to thousands of pieces.

For big-city orchestras like the New York Philharmonic, that change is like a "mosquito bite," Mr. Golan says. But Mr. Golan’s [University of Denver] ensemble gets only about $4,000 to rent and buy music each year. That means it can perform some copyrighted works but must rely on the public domain for about 80 percent of its repertoire. And $4,000 is relatively generous. Other colleges might have only $500 to spend on music. When the Conductors Guild surveyed its 1,600 members, 70 percent of respondents said they were now priced out of performing pieces previously in the public domain.

As Brian asked in his email pointing me to the article,

it sounds like US courts have always been willing to extend copyright protections…will there ever really be a "public domain" in the future for works published/created after World War I?

Unfortunately, the jury’s still very much out.