Author: TSA Press

When the Digital Millennial Copyright Act — try saying that five times fast! — hit the books back in the waning days of the 1990s, it included a provision that sought to protect authors of copyrighted works against being disassociated from their work. Section 1202 of the DMCA makes it a violation to either remove an artist’s copyright management information from her work or distribute an artist’s work with false copyright management information. For example, if you copy my painting and crop out my signature from the lower right corner when doing so, you have committed direct copyright infringement while also violating the DMCA. And if you then sell that painting with your name added to the lower right corner, you have again violated the DMCA.

The issue that has plagued the courts since the DMCA’s inception is delineating the contours of what qualifies as copyright management information (CMI).

By statutory definition, such information includes “[t]he title and other information identifying the work, the name of, and other identifying information about, the author, copyright owner, or performer, or such other information as the Register of Copyrights may prescribe by regulation.” And, as we know from emerging case law, most recently the Fifth Circuit’s decision in Energy Intelligence Grp., Inc. v. Kayne Anderson Capital Advisors, L.P., 2020 WL 219008 (5th Cir. Jan. 15, 2020), the definition of CMI is to be construed “broadly”

It took the courts a minute, or more specifically, 12 years, to get to this construction. Back in 2007, two courts — one in New Jersey and one in California — examined what constituted CMI and narrowly construed the term to exclude anything outside of the technological realm.

The California case, venued in the Central District and styled Textile Secrets Int’l, Inc. v. Ya-Ya Brand Inc., 524 F. Supp. 2d 1184, (C.D. Cal. 2007), addressed the plaintiff’s inclusion of a design title to the edge of physical fabric bearing a copyrighted design. The court interpreted CMI to exclude any “circumstances that have no relation to the Internet, electronic commerce, automated copyright protections or management systems, public registers, or other technological measures or processes as contemplated in the DMCA as a whole.”

Because the plaintiff in Ya-Ya was unable to establish “facts showing that any technological process as contemplated in the DMCA was utilized by plaintiff in placing the copyright information onto the [copyrighted design], or that defendants employed any technological process in either their removal of the copyright information from the design or in their alleged distribution of the design,” the Section 1202 claim was rejected.

The Ya-Ya decision has aged like a soggy haddock fillet, with subsequent courts roundly rejecting its analysis. Soon after the decision issued, the Central District decided Fox v. Hildebrand, 2009 WL 1977996 (C.D.Cal.2009), holding that a handwritten (i.e., physical) copyright notice on architectural renderings constituted CMI even though it was not in digital form.

Just about every court deciding the issue after the Ya-Ya court also sneered at the proposition that CMI’s purview reached only material created and removed via technological processes. Mindful of the Supreme Court directive in Ratzlaf v. U.S., 510 U.S. 135 (1994) that when “a statutory text is clear, a court should not resort to legislative history[,]” these courts simply read and applied Section 1202, which does not distinguish between physical and digital CMI.

In Williams v. Cavalli, 2015 WL 1247065, (C.D. Cal. Feb. 12, 2015), for example, the court held that the physical signatures (or “tags”) of two street artists who created murals under the names of “Revok” and “Steel,” constituted CMI, because the tags identified Revok and Steel as the authors of the mural at issue. The fact that the tags were applied and removed physically and not digitally was of no moment. This is because, at the end of the day, as the court in Pers. Keepsakes, Inc. v. Personalizationmall.com, 2012 WL 414803, (N.D. Ill. Feb. 8, 2012), remarked “the point of CMI is to inform the public that something is copyrighted and to prevent infringement” and that information can take any form.

Which brings us back to Kayne Anderson, the recent Fifth Circuit case. There, the court acknowledged the broad-construction directive and concluded that CMI could be found in the form of a title of a .PDF file. The judges point out that “[n]othing in § 1202 indicates that a digital file name cannot be CMI.” And, citing 17 U.S.C. § 1202(c)(1), they held that “a PDF’s file name may be CMI if it is “conveyed in connection with copies” of the underlying work and contains a “title and other information identifying the work.” Thus, because the plaintiff had introduced evidence that it named its .PDFs to identify the works comprising the .PDFs (Oil Daily newsletters, in this case), its Section 1202 claim was a winner. Expect this more broad construction to become the norm in CMI cases.

Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

It’s been a while since I’ve had a “what were they thinking?” post. I wasn’t thinking about writing one now, but I couldn’t resist, given the plethora of gaffes from the merely stupid to the absolutely outrageous and deserving of discipline.

Let’s start with the judge who asked an alleged rape victim whether she had closed her legs. No, he wasn’t joking, and of course, it was a male judge who asked the question. I think that any female judge would have known better than to humiliate an alleged sexual assault victim. And I didn’t know whether there is such a thing as the “closed legs” defense in a rape case. Would an “open legs” defense be better? The judicial ethics board has recommended that the judge be removed, based not only on this incident, as egregious as it is on its own, but also on other prior incidents. Shame on him, but why with “priors,” so to speak,  wasn’t he woodshedded previously?

Then there’s the judge in New York who has resigned and agreed to never seek judicial office again, the death penalty sanction. He had been judge of the year in 2018. Oops. Why did he resign? Apparently, he created a hostile work environment, not just recently, but since he had taken the bench years ago. What the hell took so long? (I know, I know, fear of job loss, retaliation, and other similar reasons.) It wasn’t just a case of being asleep at the Rip Van Winkle switch for the conduct to have gone on for so long without any consequences. Finally, someone or more than one someone woke up. Better late than never.

Although not a judge, and unlikely to ever be one, Michael Avenatti, ATL’s 2018 Lawyer of the Year (everyone makes mistakes, even ATL) is now in court, not as a lawyer, but defendant. (Karma is a bitch.) Whatever happens in New York will not be the end of Avenatti’s legal troubles. He faces trial this spring in Orange County (we like to call it the “O.C. ”) for embezzlement and tax fraud.

The State Bar is breathing heavily down his neck, having filed disciplinary charges. Will the outcome of the various criminal proceedings determine what kind of discipline the State Bar will impose? Unlikely, as the State Bar’s mission is public protection.

Memo to self: don’t lift language from confirmation hearings of United States Supreme Court nominees without attribution. Sounds simple, right? An Arizona lawyer has been reprimanded for lifting quotes in her application for a seat on the state’s court of appeal. The quotes were from Justices Samuel Alito and Neal Gorsuch. Reading what she lifted, the sentiments expressed in those quotes are not unique to those two nominees or any other judicial candidate. Couldn’t she have rephrased them in her own words? She’s since withdrawn her application.

You youngsters probably don’t remember Zoe Baird and the Nannygate issue that derailed her nomination as Attorney General for Bill Clinton. Much the same happened to Clinton’s second nominee, Kimba Wood. Janet Reno had no kids and no Nannygate issue, so she became Clinton’s attorney general.

In Montana, a judge faces accusations about the truthfulness of her legal employment and her nanny’s employment, the latter being the pretty much the same issue that precluded both Baird and Wood from the Attorney General’s gig.

Is Nannygate an issue that only attaches to women lawyers?I Googled the term “male lawyers Nanny Gate” and found that almost all references were to women lawyers, but several prominent men were caught in Nannygate years ago.

Since women have the bulk of the majority for child care, care for aging/infirm parents, and any and all other cares named or unnamed, it’s not surprising that one of the main reasons that women leave Biglaw is that these kinds of cares are almost always the exclusive territory of the women. Nothing new there. Will there ever be? Childcare Commitments Are Driving Women Out of Big Law | The American Lawyer

We all make stupid mistakes, maybe not criminal, but stupid, thoughtless, and with the ability to put our feet in our mouths — one of the few things I have had no trouble doing since infancy. Perhaps if we could just keep our mouths closed until we have something of value to say and not just something that we think it cute or funny or au courant.

If there was only a device that would allow us to eat our words before we could speak them, a sort of implanted word shredder, a self-censoring Twitter. We might be a whole lot better off, and perhaps a whole lot less disciplined.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

In the past decade, we have seen a distinct and positive trend in our country when it comes to surrogacy legislation. States that had previously banned or criminalized surrogacy arrangements have instead seen the light and have been quickly reversing their anti-family positions. In the place of bad public policy, these states have recognized that surrogacy is a meaningful pathway to parenthood that is best addressed with reasonable regulations to protect all parties involved.

Indeed, some places with truly hostile anti-surrogacy laws dramatically have recently reversed themselves and embraced smart, protective regulation. These states include New Jersey (reversing its ban in 2018), Washington state (reversing a prohibition on “commercial” surrogacy in 2018), and Washington, D.C. (reversing an old law criminalizing surrogacy in 2017). New York is one of the rare remaining states with a commercial surrogacy prohibition, but the Empire State is also headed the right way. With the state governor’s outspoken support, New York is poised to reverse the ban and pass positive regulation with the Child-Parent Security Act.

So What’s Wrong With South Dakota?

I don’t have anything against South Dakota personally. We love vacationing at Mount Rushmore. Unfortunately, something has taken hold of its state legislature. Because despite the trend toward free, well-regulated, pro-family policies, South Dakota has decided to go *the opposite* direction.

In sharp contrast to the rest of the country, last week, South Dakota introduced House Bill 1096, “an act to prohibit commercial surrogacy contracts and provide a penalty for facilitating a commercial surrogacy.” In other words, South Dakota is trying to move the state back to where New Jersey and Washington, D.C. were in the 1980s.

To make matters worse, the bill’s title is itself misleading. While the title and proponents are claiming they are merely trying to prevent “commercial” surrogacy — which happens to be the most common form — the overly broad language used in the bill would actually apply to all surrogacy arrangements in the state.

That’s because the bill defines “commercial surrogacy” to include any arrangement whatsoever where any person receives any “consideration or thing of value.” That’s very broad. Because even if the surrogate is not receiving the usual altruistic surrogacy arrangement reimbursements such as maternity clothes, mileage, and lost wages, the intended parents are certainly receiving something of value: the fact that another person is bearing the labor and expense of carrying their child. And while there is a medical expense carve-out for the application of the criminal section, that exclusion does *not* apply to the prohibition of enforcement of a surrogacy contract in the state.

While I generally like to stay even-handed in this column, I’ll just lay my cards on the table and say that this is a terrible bill and shouldn’t be passed. But, at a minimum, its supporters should at least be honest about the bill’s wide-ranging and perhaps accidental application to every form of surrogacy. Or, at the least, I’d expect them to amend the bill language to be clear that it does not apply to altruistic surrogacy arrangements.

Too Fast For A Legitimate Legislative Process

Something is rotten in the state of South Dakota. After being introduced to the state House of Representatives on Monday, January 27, 2020, the bill was quickly assigned to the House Judiciary Committee. Two days later, on Wednesday, January 29, the committee had already concluded hearings and passed the bill out of committee with a vote of 11-1. That was fast!

It’s hard to conclude that the process so far has included legitimate consideration of the state’s stakeholders, such as families needing surrogacy to complete their family, and the multitude of South Dakotans in support of them. Hopefully, the rest of the process slows down enough for state legislators to be shown all sides of the issue.

So What Is The Problem?

Professor Judith Daar, Dean of the Chase College of Law at the University of Northern Kentucky and chair of the American Society of Reproductive Medicine ethics committee, explained the problem with this type of legislation. “Criminalizing commercial surrogate parenting arrangements will not end the practice, but rather force South Dakotans who wish or need to form their families through surrogacy to incur greater expenses and duress as they travel to a more permissive jurisdiction. In addition, deeming surrogacy agreements unenforceable in the state leaves all parties vulnerable to uncertainty.”

And The Answer?

The alternative answer is pretty clear. Don’t pass the bill. Daar explained that good “state laws protect gestational carriers by requiring independent legal representation and assuring health coverage, along with parentage rules that recognize intended parenthood and assure offspring welfare are a far better approach than blanket bans.” Good public policy is not just pro-family, it’s also trending around the country.

What Can You Do?

I spoke with Emilee Gehling, an experienced South Dakota assisted reproductive technology attorney and owner of Dakota Surrogacy. Gehling explained this is a labor (no pun intended) of love for her: helping those struggling with becoming parents and supporting the amazing women wanting to assist them is a life passion.

Since the bill was introduced, Gehling has basically become a part-time lobbyist, in addition to a practicing lawyer. She told me that she has been living at her desk, doing all that she can to make sure South Dakota families are not jeopardized by this legislation. A group of local surrogates and parents set up a GoFundMe page to support the fight in the South Dakota legislature. And they are urging everyone — especially you readers in South Dakota — to consider signing a petition opposing the detrimental impact of HB 1096.

Let’s fight this thing!

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

I don’t think as a society in general, or as a profession in particular, we spend enough time openly discussing our fears. I’m not talking about the way my dad becomes a surprisingly agile septuagenarian every time a harmless little garter snake pokes its head out from beneath his shed. No, I’m talking more about intangible fears. Things like that lump in my stomach I get by the end of every pro bono legal advice clinic, when I can’t keep pretending that two-thirds of the attendees don’t really have a legal problem but just have no one else in their lives to talk to. I dread that fate.

It’s not only outliving my friends and loved ones or slowly alienating them over time that frightens me. For better or for worse, I also have a big dose of that fear of becoming unrecognizably domesticized. So many of the people I know desperately value a big, clean house, a well-kept yard, nicer vehicles, and better appliances than all the neighbors. I just can’t get myself to care about that stuff. I ride around on my 1997 Honda Shadow, when I want, where I want. I travel to places like Havana and Vietnam and New Orleans on a series of whims. I crack open my laptop when I can’t sleep at 2 a.m. to tap out a screed on some obscure matter I’ve deemed of national importance. I don’t bother to scrub my floors — what’s the point? They’ll just get dirty again, and I have thoughts to think.

I’m paralytically afraid I might wake up someday to find all the things I care about displaced with worries over backsplash and landscaping projects. So, it was with something approaching mild courage that I bought my girlfriend a new dishwasher for her house this Christmas. It was some major ground ceded to the Wolf domestication lobby.

We went to Best Buy, and really took our time picking out something she liked. She went with one of the higher-end models, a sleek stainless-steel thing at $749.97 that came with “free” delivery and installation. “Hey, that’ll be convenient,” we reassured each other. We were a little disappointed that the earliest date they could send an installation guy was some three weeks later, but good things come to those who wait, right?

We waited the three weeks and change, with me getting no fewer than five texts reminding me of the installation appointment. The last of these, on the day of, said the installer was “on the way.” Only then he wasn’t, according to a sixth text. Well, it was snowing pretty hard the previous evening, these things happen. I went into the store again and got the installation rescheduled. Now I had to take another half of a day off from work to get within the alarmingly vague time window they give you, and, this time, the guy at least showed up. However, when he showed up, he took the lower panel off the existing dishwasher, frowned, spent some time rooting around above the ceiling tiles in the basement, and then informed me that he couldn’t install the new dishwasher until we paid a plumber to come do some thing he wasn’t qualified to do. He did dump the new boxed dishwasher off with me though, and stole the panel from our old one for some reason.

Well, I called Best Buy and got no help. The lady I reached didn’t even ask for my name or order number, just told me to call a plumber and that Best Buy wasn’t paying for any of that. I did call a plumber, but couldn’t get anyone over to the house immediately. A few days later, I get another text from Best Buy saying our “free” installation had been cancelled entirely. After several more phone calls to Best Buy, and several more times of explaining the whole situation, I was told I had to go into the store to reschedule the installation because this couldn’t be done over the phone without incurring a new $160 charge. I was also told there was only a 15-day return period after the inert thing was dropped off against my will, which of course wouldn’t be nearly enough time to get a plumber over there or to reschedule the installation.

I talked it over with my girlfriend, and I finally threw in the towel. I could have purchased several dishwashers, or, you know, something that wouldn’t drive me completely insane, had I been able to bill for all the time I spent on this ordeal of not getting a dishwasher. Supposedly the damn thing is in the process of being returned now, and they’re coming to pick it up (another half day wasted), and Best Buy will issue me a refund when they get it back. I have my fingers crossed. I reached out to Best Buy’s press office for comment on this story, and found them about as responsive as their customer service line, so I’m trying not to get my hopes up.

And so, my fear of domestic bullshit proved warranted. I just don’t see how this nice new domestic shit that you can’t actually buy without giving yourself an aneurysm is supposed to make your life better. Maybe I’ll try again in a couple years. Until then, give me a honk if you pass by me on my motorcycle, and hopefully you’ll come along with me for a few more 2 a.m. screeds.

Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

Right-wing podcast star “Coach” Dave Daubenmire want to sue the Super Bowl for keeping him out of the Kingdom of Heaven, and he wants you to join in with him.

Daubenmire, who refashioned himself into a right-wing hero after the ACLU forced him to stop proselytizing to high school football players in London, Ohio, is extremely upset about the “pandering pornography” of Sunday night’s Super Bowl halftime show. Although he refused to watch Jennifer Lopez’s pole dancing and Shakira’s zaghrouta because he “didn’t want to let that spirit come into my house,” Daubenmire is very upset about a mythical 12-year-old boy (without internet access), who tuned in to watch grown men whack the crap out of each other only to find himself unceremoniously thrust into a hormonal inferno.

“Would that halftime show, would that have been rated PG? Were there any warnings that your 12-year-old son — whose hormones are just starting to operate — was there any warning that what he was going to see might cause him to get sexually excited?”

Who will join this brave patriot in demanding judicial redress for this grievous injury to our collective mortal souls, which have been willfully, knowingly, recklessly, and negligently jeopardized, with actual malice, by force, using undue influence, and per se outside the four corners of our cable contracts?

All he needs is a lawyer willing to take his case.

“That’s discriminatory against the value I have in my house. You can’t just do that,” Daubenmire said on his Monday podcast. “I wanna sue them for about $867 trillion.” Plus punitive damages, no doubt.

Right Wing Watch was first to flag the video.

Daubenmire continued with his theme of “Crotch shots! Dare I say that? Crotch shots!” in a Facebook post later that day.

When we were kids, our dad said to us often in one form or another to always stay in touch. No matter where our journeys took us, we should pick up the phone to check on each other, to let each other know we are there for them. We should be sure we each know that we will love and support the other. His views in this regard were no accident.

Dad was the middle of three boys and while no sibling relationship is free of conflict, I think he really got this gift and made sure he handed it down to us. The greatest gift there is. It cannot be bought or artificially created. It comes from a place only we brothers can reach.

All these decades later, over a thousand miles from the house we fought it, played Nerf football in, wrestled in, and damaged in ways only three large boys can, it is no accident that we all live basically walking distance from each other and until dad passed, he was within that grid. When you think about it, for over thirty years, that has been the case more or less.

We are truly privileged to have that gift. I know many siblings who don’t speak to their brother or sister. I know those who have no relationships with one parent or both. People live difficult lives and I don’t judge any path; I am just happy that ours has been one of love and support. It is a privilege not all enjoy.

A story I have never related to you is about one of the first speaking presentations I gave. I thought I had bombed. I saw glassy eyes and drool. I returned home, depressed and wondered if public speaking was for me. I could not connect. I told the story about that gift, no one seemed to care.

I opened my Twitter. There was a tweet to me from a young girl. It read:

“You don’t know me, but my dad was at your talk today. We are having dinner together for the first time in a year”

A person had accepted the gift that I try to pass on with every talk.

Of course, it has gone well beyond that. I would be dead if you both had not come into my house that day in July 2005. I had a weapon on my nightstand. The drugs were everywhere. I felt like I was doing everyone a favor by ending my life. I was an embarrassment. I would erase the blotch on the Cuban name. I would end my pain.

That gift again. You wouldn’t let that happen. I am here. I am loved.

I remember telling dad for the first time about my struggle after I looked into the abyss again on Easter weekend 2007. His response was that I should move in with him, and he would help me get through it.

The love. The gift.

I watch how you treat your children and I have no doubt you are living the words of our father. Living the love and the gift.

Thank you both for that love and support without which, I would not be able to pass on what our dad gave us. I would not be able to do a little bit in part of the world to change the world with acts of kindness, also known as Tikkun Olam.

I love you both with all my heart. I know dad’s words are always alive in us.  His bill to us was in part to pay that that love forward, that gift. It has been paid and will continue to be.

Brian Cuban (@bcuban) is The Addicted Lawyer. Brian is the author of the Amazon best-selling book, The Addicted Lawyer: Tales Of The Bar, Booze, Blow & Redemption (affiliate link). A graduate of the University of Pittsburgh School of Law, he somehow made it through as an alcoholic then added cocaine to his résumé as a practicing attorney. He went into recovery April 8, 2007. He left the practice of law and now writes and speaks on recovery topics, not only for the legal profession, but on recovery in general. He can be reached at brian@addictedlawyer.com.

Biglaw firms are all about defining their priorities right now.

The latest firm to make some moves consistent with their strategic plans is Mayer Brown. The firm’s head of global litigation and dispute resolution practice, Richard Spehr, has said that growing the white-collar and regulatory practices in D.C. and New York is their “number one strategy” and the proof is in the hires.

As reported by Law.com, this week, Mayer Brown added Michael Levy, formerly of Paul Hastings, to its roster. And his new firm is excited to have him on board:

“Michael is well-respected in the D.C. community and widely known as a first rate trial lawyer,” Raj De, managing partner of Mayer Brown’s D.C. office, said in a statement.

According to his new firm, Levy worked on the Enron case as well as the financial mishaps of Fannie Mae, the downfall of MF Global and the NFL’s “Spygate” scandal involving the New England Patriots. He has also represented clients who were involved in investigations into the murders of four Americans in Benghazi and the use of a non-governmental private email server by former Secretary of State Hillary Clinton.

As Spehr said, there are even more plans to grow the practice, and they say they are actively looking for lawyers to join the firm from the Southern and Eastern Districts of New York. This will build upon a series of lateral moves the firm has made over the last few years. Back in 2016, they added Daniel Stein, former chief of the criminal division of SDNY. Glen Kopp, also formerly of SDNY, joined Mayer Brown in 2018. In late 2018, Audrey Harris was also brought on as co-chair of the firm’s anti-corruption practice. And in 2019, Jason Linder and Glenn Vanzura joined the firm’s L.A. office.

Congratulations to the firm as they continue making big-impact lateral moves.

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).