Category: News Feeds

This week, we all have the distinct displeasure of sitting through a Republican National Convention that is just one fawning sycophant after another describing an alternate universe in which the president isn’t the worst. The whole (self-described) Republican nonplatform this year is “[t]hat the Republican Party has and will continue to enthusiastically support the President’s America-first agenda.”

When all that binds you together is being part of a cult of personality, and knowing it, and being proud of it, boy, there is not much left to talk about. Even Fox News is sick of covering more or less the same speech repeated over and over by D-list Republicans and Trump family members. I guess even if you like Donald Trump, enough is enough.

Fortunately, I’ve found the perfect thing to distract from the vapid RNC and the articles from all the poor political reporters who have to keep coming up with new ways to write the story, “These People Really, Really Like Donald Trump.” It’s comedian Jim Jefferies’s new podcast, I Don’t Know About That with Jim Jefferies!

When I wrote about Jim before, in late April of this year, I expressed hopes of going to a Jim Jefferies show once things reopened, which seemed almost a pending inevitability as of late April. Well, apparently my hopes were a bit premature. But in the meantime, Jim came through with some classic Jim Jefferies-style entertainment to help keep us motivated during this pandemic (and to make himself some money hawking manscaping products and home shipping equipment and other pandemic essentials while he’s not on the road doing standup).

The basic premise of the show is simple. The title, I Don’t Know About That, refers to a good line to say to that jackass at a party spouting a bunch of nonsense, before you casually walk away. In the opening minutes of every episode, Jim plays the titular jackass. He first tries to guess the topic of the episode based on little more than the appearance and surroundings of the invited topical expert, who is appearing on a videoconferencing screen. Then, Jim rambles off everything he purports to know about the given topic, some of it utter gibberish, a surprising amount reasonably spot-on, but all of it hilarious. Jim is graded on his recitation of knowledge, and finally the topical expert sets Jim straight on a few things in an hour-long discussion. Jim’s sidekicks Kelly Blackheart and Forrest Shaw occasional jump in to comedically lacerate him, and every now and again, assistant Jack Hackett comes to Jim’s aid. All in all, a pretty good way to spend an hour to 90 minutes.

The first episode came out on May 4, and in just under four months, Jim has covered topics ranging from the War on Drugs to bees. The breadth of the topics, and the depth of each episode, are particularly soothing antidotes to the one-trick pony that is the RNC this week. It’s also nice to listen to a show where people, you know, acknowledge both the value of expertise and the fact that they don’t know as much about a given topic as someone who has spent years studying it. Plus everyone on the show seems to be actually having a good time learning about stuff, which is, I suppose, appropriate for an entertainment podcast.

So, if you haven’t listened to I Don’t Know About That yet, now is the perfect time to catch up — the episodes are largely evergreen, you won’t have missed much by being late to the party. Do yourself a favor (and do me one while you’re at it, I really hope Jim can keep making this podcast), and give I Don’t Know About That with Jim Jefferies a try.

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.

Those photographers and creatives who post their work on Instagram (read: all of them) were rightfully upset earlier this year when news of the decision in Sinclair v. Ziff Davis/Mashable.com hit the the webwaves. In that case, a Southern District of New York court ruled, in essence, that any art or photography that a creator posted to Instagram could be exploited by third parties that employed Instagram’s platform to repost the work on their own website. This conclusion resulted in the dismissal of Sinclair’s copyright case, which sought to address Mashable.com’s publication of Sinclair’s photograph entitled “Child, Bride, Mother/Child Marriage in Guatemala” after Sinclair had declined their request for a license. To be sure, it was a clear case of infringement that was dismissed on a questionable basis. And the court’s decision, which for the first time held that work posted on Instagram could be used by outside companies for their own purposes without consent, resulted in numerous creatives shuttering or limiting access to the Instagram accounts.

The initial Sinclair decision concluded that the prolix and contradictory Terms of Use to which one clicks agreement when first signing up for Instagram granted Instagram broad rights. And that those broad rights somehow allowed third parties to then exploit anything published to Instagram.

But, the court did not take into account the fact that Instagram would itself have to exercise its right to sublicense in order for third parties to exploit the works posted on Instagram. And it failed to acknowledge that elsewhere in the labyrinth of Instagram’s terms it is specifically stated that Instagram users own the rights to the work that they create and post and that third parties hoping to exploit the work must gain the creator’s consent to do so. All in all, the case was a tragedy for artists and creatives who showcased their work on the world’s largest online platform.

Luckily, though, a case with remarkably similar facts was pending in a courtroom right down the hall from the court that decided Sinclair. And that court respectfully but firmly rejected the key conclusion in Sinclair — that a creator’s posting a work to Instagram gave the rest of the world the unfettered ability to exploit that work without consent for commercial gain. (n.b., this author represents the artist in this case.)

In that case, McGucken v. Newsweek, the once-relevant but now disgraced publication had requested from McGucken a license to publish one of his striking photographs. When he declined to grant a license, Newsweek published his work anyways, alongside Newsweek advertising. When McGucken objected to this exploitation without consent, Newsweek, in an argument similar to that advanced in Sinclair, claimed via a tortuous and tortured reading of Instagram’s terms that it basically had the right to do whatever it wanted with McGucken’s work and that his feelings on the subject were irrelevant. Because, Instagram.

The court, though, rejected Newsweek’s baroque (and, some might say, broke) argument, noting that Instagram’s terms expressly state that “User Content is owned by users and not by Instagram” and that companies like Newsweek must “[c]omply with any requirements or restrictions imposed of usage of Instagram photos and videos … by their respective owners[.]” Of course, Newsweek presented no evidence that it complied with McGucken’s requirements or restrictions. To the contrary, the record reflected that Newsweek scoffed at McGucken’s restrictions and exploited his work notwithstanding his feelings.

And, crucially, the McGucken court adroitly recognized that while Instagram users may grant Instagram a license to use their work, there was a conspicuous lacuna when it came to evidence establishing that Instagram ever sublicensed McGucken’s work to Newsweek, as Newsweek claimed. The court acknowledged that while Instagram certainly had a bunch of terms, “none of them expressly grants a sublicense to those who embed publicly posted content.” As there was no evidence whatsoever in the record to establish that Instagram had authorized Newsweek to make any use of McGucken’s work, Newsweek’s argument that it could do as it pleased with McGucken’s work was rejected.

In the wake of the McGucken decision, the Sinclair court reconsidered its ruling and reinstated the artist’s case. And to put a bow on the matter, Instagram itself went public and stated without equivocation that the putative sublicenses of the type claimed by Newsweek are simply figments of imagination that do not, in fact, exist. So, at this point, all courts to consider the issue and Instagram itself has taken the position that third parties cannot exploit the work of creatives simply because the work was posted on Instagram.

Of course, the uniformity of these developments has not dissuaded Newsweek from pushing forward with its attack on artists’ rights. The company has returned to court demanding that it reconsider its ruling and instead conclude that Instagram, which has now publicly stated it does not provide sublicenses, provided Newsweek a sublicense to exploit McGucken’s work. So the saga, as it does, continues.

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.

I think it’s fair to say that in both form and substance this year’s ILTA>ON conference embraces its position in the liminality of the legal industry. The schedule itself is unbounded as global participation joins at all hours. Presentations and panels teeter between analyzing long-term glacial trends and conjecture about the staying power of the knee-jerk COVID-19 accommodations of the last few month. All the talking points along the pathway to the future have scattered and the throughline of the conference seems to be making sense of it all — like adults frantically sorting through a LEGO catastrophe before company arrives in 30 minutes.

For a show dedicated to the future of the industry, this year’s installment feels to have jumped the guiderails more than ever before. Which, of course, is the fun of it. Futurism isn’t really exciting until you find yourself unmoored to conventional wisdom.

The morning keynote set this tone with Richard Punt, Managing Director, Legal Strategy & Market Development of Thomson Reuters, offering thoughts on where the industry would go once the COVID quake settled ranging from the more predictable conclusions based on the last decade, such as increased client focus on business outcomes rather than the nature of legal inputs, to more unforeseen developments tied to the pandemic, like an increased online shift of justice. It may be hard to believe that justice is moving online with all the pushback to the mere suggestion of moving trials online, but Punt doesn’t necessarily see trials moving online as much as an increased acceptance that many other stages of litigation can. That’s certainly not too hard to believe.

Where does the legal industry generally and legal technology specifically go from this juncture? Litera CEO Avaneesh Marwaha sees this as a wakeup call to industry strategizing, “What COVID did to this industry is: if you want to build a 5-7 year strategy, that plan better allow for flexibility.”

We’ve had a decade of relatively predictable progress — AI hype cycle notwithstanding. But now there’s a shared recognition that things aren’t guaranteed to go to plan. For Litera, Marwaha finds that embracing flexibility pays off with customers. “We have to be nimble in our planning to allow for shifting priorities — the big shift is that clients want to partner with providers that are nimble as well.”

Litera has its share of big news to share this show as well, unveiling Litera Litigate offering coverage of drafting, case management, and binders for litigators, and Litera Transact combining Doxly and Workshare Transact, while announcing that its Litera Desktop feature has seen 50 percent year over year growth. Now all of these solutions are available through the Litera Work ecosystem.

Tech providers have touted agility before, but there’s just more weight to those words now. Tomas Suros, Global Product Marketing Director-Legal at AbacusNext told me that their latest ILTA announcements were in the works before the pandemic, but that the virus still had an impact on the release. “We’re an agile development house, so we shifted some priorities and features included in the release… we have a long list of features planned and we accelerated some features based on this, all stuff that was either requested by clients or just made sense.”

Specifically, AbacusNext offers a new cleaner and customizable user interface, new apps including an accounting and an hours comparison app, and API provisioning. And that’s apparently not the end of updates coming out in 2020 from them.

The capper after another day roaming the threshold outpost of ILTA>ON is a round of Family Feud sponsored by iManage. It’s an ominous entry for attendees grappling with the weighty existential questions of the law’s winding technological path. Two teams — but really all of us — locked beneath the spotlight attempting to guess what a nebulous, unseen audience really desires. It doesn’t matter if it’s the most effective application of machine learning advancements to the timely provision of legal services or five things a man might buy for an anniversary gift. In either event we’re embarking upon this journey without a clear guide.

Survey says. Survey says indeed.

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

In the late 80s, police were dispatched to investigate why thousands of VHS cassettes were scattered on highways around Jackson, Mississippi. That started a series of events that threatened the most powerful people in town and ended a mom and pop business. Without margin, small businesses — including small law firms — can’t survive.

Make sure you take advantage of the show’s Q&A feature. You can ask Mike questions about the latest episode and he’ll answer at the end of the next episode. Just submit your question in the form at the bottom of this post.

Episode Resources

The Cost of Law by Gillian Hadfield
Margin by Richard Swenson

If she wanted to talk to us, she would always buzz us on her buzzer, like this weird intercom that we had. You know, if I hear a buzzer ever these days, still my heart rate goes up. You’re just sitting there, researching and then the thing goes BZZZZZZT! and it means there’s a justice of the Supreme Court who wants to ask you some hard questions about law.

— Professor Jay Wexler of Boston University School of Law, in comments given about what he experienced during his time clerking for Justice Ruth Bader Ginsburg. Wexler is the first legal scholar to study laughter at the Supreme Court. Watch the video below for insights from other Ginsburg clerks, like Judge Goodwin Liu of the California Supreme Court, Judge John Owens of the Ninth Circuit, and Dean Trevor Morrison of NYU School of Law. 

Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

The coronavirus crisis has wreaked havoc upon the legal profession, leading some firms to cut salaries, furlough employees, and even conduct layoffs. Several months have now passed, and many firms have started to partially or completely roll back their austerity measures. But what happens if things get worse?

What if things go the way they did during the last recession? Will incoming first-year associates suddenly find themselves without jobs? Will offers be rescinded like they were in 2009?

This is the question that’s on everyone’s minds, considering start dates have already been deferred. With worries abound, industry observers are here to offer some support and some calming words of comfort. They don’t think there’s anything for first-year associates to worry about; the chances of a 2009 repeat performance are “extremely remote.” From the American Lawyer:

“Those were different times. I’m not seeing that firms are in that kind of financial distress,” said Joan Newman, an executive coach at Joan Newman & Associates, who works with big-firm partners and senior associates.

“Some areas are busier than others, but it’s not all gloom and doom like it was in 2009,” said Newman, who worked with laid-off Big Law associates in 2009 to find other positions. “M&A is down but litigation is starting back up again and labor and employment law is booming.”

A leader of a national law firm echoed these thoughts, saying “it’s highly unlikely that anyone will further push back deferrals or cut the class.”

Some incoming Biglaw associates may have reason to be concerned — they’ve heard nothing from their firms regarding their start dates. Is something like this going on at your firm? Please get in touch with us via email or text — tips@abovethelaw.com or (646) 820-8477) — and we’ll try to get to the bottom of it for you.

Keep your fingers crossed that nothing changes. We’d hate to see yet another lost generation of lawyers left behind by Biglaw.

What Are the Chances of First-Year Associate Cancellations? [American Lawyer]

Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

The trend of Biglaw firms pulling back from the height of their COVID-19 economic concerns continues. More and more, we’re seeing firms that decided to cut salaries when faced with the economic uncertainty of the pandemic change course, and re-institute at lease some of the cuts.

Back in April, Loeb & Loeb announced some salary cuts, as a way to avoid layoffs. Partners took the hardest hit, with draws slashed by 20 percent. Income partners, senior counsel, of counsel, associates, and senior staff had their salary cut by 15 percent and paralegals and other staff saw 10 percent cuts. But that’s changing.

Yesterday, firm chair Kenneth Florin announced via memo that “the impact of this pandemic on our business has not been as damaging as we had feared.” But that the firm is “very much aware that this pandemic is far from over and its overall impact not yet clear.” So, as a result, as reported by Bloomberg Law, Loeb & Loeb will see a partial reversal of their salary cuts.

Effective September 1st, the cuts will be reduced by 60 percent for income partners, senior counsel, of counsel, associates, paralegals and staff. The reductions to the monthly capital partner draws will remain in place. Florin also said the firm plans to award their annual year-end bonuses.

Let’s hope it’s only a matter of time before full salaries are restored.

If your firm or organization is slashing salaries or restoring previous cuts, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

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).

The GOP crime spree continues with yet another night of illegally coopting the powers of the presidency as part of the Republican National Convention.

Here’s Donald Trump issuing a pardon! Here’s the First Lady giving her speech from the Rose Garden! Here’s Donald Trump swearing in new American citizens! Here’s the Secretary of State taping a convention speech while on a junket to Jerusalem after explicitly warning his staff that politicking while abroad on official missions was against the law.

The Hatch Act makes it illegal for a federal employee to “use his official authority or influence for the purpose of interfering with or affecting the result of an election.” While the president and vice president are exempt, federal employees who help them set up speeches at the White House or, say, Fort McHenry, are not.

As the Office of Special Counsel wrote in a letter to congress this month, “White House employees are covered by the Hatch Act, so there may be Hatch Act implications for those employees, depending on their level of involvement with the event and their position in the White House,” adding later that “all White House employees, including White House Commissioned Officers, are subject to the prohibition against using their official authority or influence to affect an election. Accordingly, Hatch Act concerns could arise if White House employees who are supervisors were to task subordinate staff with work in support of the political event.”

This would seem to specifically preclude the naturalization ceremony at which Acting Secretary of Homeland Security Chad Wolf gushed, “Mr. President, I want to again commend you for your dedication to the rule of law and for restoring integrity to our immigration system.” But the administration assures us that no, this is totally kosher because they taped it in advance.

“The White House publicized the content of the event on a public website this afternoon and the campaign decided to use the publicly available content for campaign purposes,” a White House official emailed Talking Points Memo. “There was no violation of law.”

But White House Chief of Staff Mark Meadows took a different approach, insisting that actually everyone violates the Hatch Act. It’s like speeding — NBD, LOL.

“What it’s really designed to do is to make sure people like myself and others do not use their political position to try to convince other employees other federal employees that they need to vote one way, need to register one way or need to campaign in one way. We take it on well beyond the original intent of the Hatch Act,” he told Politico.

“Nobody outside of the Beltway really cares. They expect that Donald Trump is going to promote Republican values and they would expect that Barack Obama, when he was in office, that he would do the same for Democrats,” Meadows insisted.

Actually, no.

The Obama administration largely refrained from criticizing Trump and Mitt Romney, and it certainly didn’t use the White House to host campaign speeches. In 2012 after Health and Human Services Secretary Kathleen Sebelius veered off of prepared remarks in an official speech for a couple of sentences endorsing Obama’s re-election, she apologized profusely and reimbursed the Treasury for the entire cost of the trip. HUD Secretary Joaquin Castro was also found to have violated the Hatch Act in 2016 when he answered a direct question by Katie Couric, saying, “taking off my HUD hat for a second and just speaking individually … Clinton is the most experienced, thoughtful, and prepared candidate for president that we have this year.”

Compared to the naked political campaigning taking place at the White House podium every day, these two isolated incidents seem almost quaint. But at the time Republicans screamed bloody murder, with the National Review calling for Sebelius’s head and likening her to “a bank robber [who] is not exonerated merely because he returns the money to the bank.”

In contrast, this White House has scoffed at the law, with Kellyanne Conway laughing off a memo finding that she’d violated the law multiple times, saying “Blah, blah, blah. If you’re trying to silence me through the Hatch Act, it’s not going to work. Let me know when the jail sentence starts.”

Which would be shameless enough if it weren’t coming from a member of the bar! But if you’ve so thoroughly coopted the justice system that you know you’ll never be prosecuted — and you don’t care at all about the rule of law — why not break the rules wholesale?

As UC Berkley Berkley School of Law Dean Erwin Chemerinsky notes in the LA Times this morning, the administration has quietly crippled the agency responsible for enforcing the Hatch Act, as the Merit Systems Protection Board currently has zero members. And if Bill Barr was going to twist himself into a pretzel to say that it was perfectly fine for Michael Flynn to lie to the FBI, he’s certainly not going to go after Trump’s staff for violating the Hatch Act.

So the wheels are well and truly off the national car. The question is, does anyone in America care?

Meadows dismisses Hatch Act concerns at RNC: ‘Nobody outside of the Beltway really cares’ [Politico]

Elizabeth Dye lives in Baltimore where she writes about law and politics.