Category: News Feeds

At issue in Lochner was New York’s Bakeshop Act of 1895 and its provision barring bakeries from keeping employees working obscene hours around hot stoves. How many hours a week were bakers allowed to keep their employees working under the act?

Hint: Lochner was fined $25 for holding an employee longer and $50 for a second offense before appealing his conviction.

See the answer on the next page.

If you’re lucky enough to have a $100 bill in your wallet, take it out and look at all those beautiful anticounterfeiting security features designed to keep your money safe. It’s got that trippy blue security ribbon with textured images of bells and 100s, an image of a bell in an inkwell that changes color in the light, and of course the watermark that is now iconic to U.S. currency. Ben Franklin’s subtle half-smirk is well placed, almost like he knows a little something you don’t.

Now take a peek at a twenty. Whereas the $100 bill is the most counterfeited U.S. denomination overseas, here at home, the $20 bill is more frequently counterfeited than its companion notes. Still an impressive feat of printing and design, the $20 bill has all the security features that have become more or less ubiquitous on U.S. currency, including the twist of a shifting color palette which fades from green to peach and back again. It doesn’t feature a picture of Harriet Tubman thanks to Steve Mnuchin, but hey, still a pretty good-looking banknote from a design perspective.

Finally, pull out a one. Soggy, torn, green ink smeared across it in tones that seem to differ wildly from one bill to the next, it looks like something you blew your nose into. Would anyone bother to make a fake version of something that looks so despondent in the first place?

Yes, it turns out they would. International Falls, Minnesota, perhaps best known for its unofficial motto, “Oh God it’s so cold I can’t feel my face,” and as the birthplace of my redheaded friend Andy, now has a new claim to fame: the end of the line for an international counterfeit currency smuggling operation.

Last week, U.S. Customs and Border Protection seized 45 cartons of counterfeit U.S. currency with a face value of $900,000 — in fake one-dollar bills — at the U.S.-Canada border at the International Falls Port of Entry. If you’re wondering what a shipment of nearly a million bucks in fake ones looks like, well, it looks like a bunch of cardboard boxes stacked up on pallets that stand well-above waist level. That is a lot of singles.

The bogus money was found in a commercial rail shipment, which authorities say originated in China. It really makes one wonder what the plan was going to be if and when the shipment reached its destination. How do you launder almost a million bucks in fake singles? Do you just pass them out as tips to baristas for the next 57 years? Maybe you bring a small army of complicit hotdog vendors into the fold? I’m pretty sure you’re not going to just get a hand truck and wheel 45 boxes stuffed with ones into a bank. And why 45 boxes, anyway? If you do the math, that’s 20,000 singles per box. Did someone get sticky fingers between here and China and run off with the other five boxes? Or did the printer decided he or she could get away with shipping $900,000 in pretend $1 banknotes, but trying to ship an even million was just too risky?

Perhaps you’re wondering, like I was, whether this crime could even be worth the printing costs. Well, if the presumably Chinese counterfeiters behind this daring low-rent forgery ring are at least as efficient as the U.S. government, it could indeed be worth their time. It only costs the government 5.5 cents to print each one-dollar greenback. This is about half of what it costs the Department of the Treasury to print the larger bills up to the $100 denomination, and about a third of what it costs to print a $100 bill, because $1 bills haven’t been redesigned in decades and lack the slightly more expensive security features of the larger bills.

Apparently the fourth season of the hit series “Fargo” is already set to air in 2020, but if the showrunners need some ideas for season number five, they need look no further. Midwestern crime stories don’t get much more absurd and charmingly quirky than $900,000 in counterfeit one-dollar bills in a train car in International Falls.

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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.

In less than a year, I turn sixty. Not quite senior, but certainly approaching the cusp. I have reflected on words my father spoke often to my brothers and me growing up in Pittsburgh.

“Today is the youngest you will ever be, live like it.”

This was a mindset that escaped me when I began recovery at forty-six. I sat in the 12-step room and listened to men and women who had been twenty and thirty years sober. They had begun their recoveries years and decades before me. It honestly depressed me. I wasn’t sure if I even had that many years in front of me with all the damage I had done to my body. It caused intense depression and loneliness.

I lamented the loss of a way of life and uncertainty about a projected future free of the bonds of booze and blow. I was terrified of looking at myself in the mirror, stripped naked, having to love the person I saw without an expensive but ill-fitting suit of cocaine and booze.

Beginning recovery at any age is difficult. It often involves some sort of loss. Loss of family. The loss of self-respect and the breaking down of self to ground zero before the slow rebuild begins. Sometimes the loss of freedom. When it happens at a later stage in life, there is a lot more room to engage in looking back at all that destruction. I certainly did that quite a bit in those early days of recovery. I obsessed over the years I had “wasted,” convinced that I might as well have lit a match to them. I felt the shame, regret, and contemplation of the uncertainty and fear of “middle-age sober.”

Starting out, it ripped me apart that I had two successful brothers whom I compared myself against and never came out feeling good. I engaged in the most self-destructive kind of reflection on the past. I call it “revisionist recovery.” Going over every moment in my past and wondering how things would be different if I had only not taken that drink or done that snort. Would I have been a better law student? A better husband? A better brother? A better son? A better lawyer?

I eventually realized that this was not going to help my recovery because it boiled my life down to moments in time rather than viewing it as a fluid chain of events that make me the person I am today. Do I have regrets? Sure. I will always regret the collateral damage, but that is what making living amends and doing my best to change the world with acts of kindness is all about for me. I can’t change the past, but I can control how I respond to it and do my best to stay in the present, trying to do the next right thing every day.

I had the epiphany that, for my recovery to truly move forward, I could no longer obsess about “wasted years.” How things could have been different or what I could have done in my life if I had gotten sober earlier. I embrace who I am today. Today is the youngest I will ever be, and I will live like it one day at a time in my recovery. That’s what I hope.

Next year I will turn sixty.

When the time comes, I will embrace the cusp of senior sober, hopefully looking forward with verve and purpose. Senior sober will be a wonderful place to be.

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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.

Legal operations is all about optimizing the legal department’s ability to grow and protect the company it serves. As such, legal departments are seeking a higher level of operational excellence. This is evidenced by their embrace of innovation, increased demand for automation of repetitive tasks and a workflow-centric approach and understanding of how to use technology to create operational wins. 

Driving efficiencies and containing costs are two key reasons that legal operations is important and is growing so quickly. Legal departments were forced to adopt a more operationally focused mindset as a result of the Great Recession. The 2008 downturn was so severe, and efficiency and cost-cutting were considered so critical to the survival of the business at large, that it was no longer acceptable to spend freely. Since then, C-suites have increasingly been making their law departments behave more like other business units. This ultimately led to the rise of a profession dedicated to bringing business discipline to the law department: legal operations. 

Legal department operations professionals (LDOs) handle the management of vendors, systems, strategic planning, technology, knowledge, financial issues and the myriad other tasks that plague the legal department. Legal operations are all about optimizing the legal department’s ability to support the business and is a multi-disciplinary function that optimizes legal services delivery by focusing on twelve core competencies. The competencies, developed by CLOC, are divided among three levels: foundational, advanced and mature. 

Cost control and cost management have always been among the legal department’s greatest challenges. Economic downturns in recent decades served to exacerbate the “do less with more” mindset. In order to meet these intensifying challenges, many departments began increasing the workload of existing resources or bringing on more in-house lawyers. Others have built and started executing technology roadmaps. Technology has been optimizing legal operations in several key areas. Workflow and automation of processes deserve a spot at the top of the list. Data analytics is also important, as analytics can demonstrate the value of technology in the department and the value of the legal department to the business. Technology is assisting with the competitive bidding process on certain types of cases. Automating many routine tasks can shave hours off any busy schedule. Collaboration using  technology gives a whole new meaning to “working together.” 

Today’s state-of-the-art technology allows all stakeholders from anywhere in the world – including legal departments, other service providers, and members of the corporation’s accounting team and business units – to be on a single platform. Technology will increasingly play a prominent role, as more LDOs are discovering they can better fulfill their mission by leveraging well-chosen technology solutions to automate processes, track legal spend and deliver key decision-ready information. The increasingly robust alliance of legal ops and technology is now helping to forge the future of legal operations in amazing ways we could never have imagined a decade ago. Onit purpose-built our technology platform to help drive this alliance and enables customers to execute their technology roadmaps over time. Click here to learn more. 

As many readers of this column know from firsthand experience, getting hired by a law firm is a brutal process. Job applicants often need to interview with many attorneys, and sometimes must appear at a law office three or more times to be interviewed for a job. In addition, job applicants often need to fill out long conflicts forms, background check forms, and other documents in order to be hired by a firm. Perhaps the worst part of the hiring process is how long it often takes to get hired. As someone who has been on both sides of the process, I understand firsthand how law firms need to respond faster and be more respectful to job applicants out of courtesy and to reduce the stress of applying for a job.

Throughout my career, I have been both a job seeker and an individual tasked with reviewing applicants for jobs at the firms at which I worked. It has always been very frustrating to observe how long it usually takes for the hiring process for a law firm to take place. Although some job hunts can take less than a month, I have seen job searches take as long as six months. During the hiring process, numerous job candidates are left in limbo as they nervously await a decision from the firm that they hope to join.

I remember earlier in my career when I was a job candidate and had interviewed at a variety of firms. For months, I waited in trepidation. I checked my emails religiously and made sure my voicemail box was empty so I could receive messages from firms. Not a day passed that I didn’t think about my job search, and most days, I constantly thought about my experiences at interviews and my chances of getting hired at a firm.

Given that the hiring process is such a trying time for many attorneys, you would think that firms would prioritize interviewing candidates as soon as possible and notifying everyone within a few days about whether they have been selected for a job. However, that is often not the case.

At many of the firms at which I worked, partners did not prioritize the hiring process and delayed responding to the candidates they had interviewed. I understand some of the reasons why partners take such a long time to respond to job candidates. For one, partners have a number of competing obligations, the most critical of which is billing hours and making money. Although adding personnel can lead to increases in revenue, taking the time to interview candidates in the short term can take time away from billing hours. In addition, law firms operate on cycles, and some periods, such as the holidays and the time leading up to Labor Day, may be slower at a shop, and many key partners may be away. As such, it is sometimes unavoidable for partners to take weeks and months to respond to job candidates.

However, partners need to understand that job candidates are often extremely stressed out about the hiring process and would like a decision as soon as possible. This is even more true for attorneys who have been laid off and simply want the nightmare of being axed to end. As a result, partners need to have compassion and factor in the stress of job candidates when deciding on the timing of a hiring process.

In addition, partners should try to minimize the amount of trips a job candidate needs to make to a firm while interviewing for a position. Every time applicants show up for interviews, they need to take time off from their current jobs (which could arouse suspicions with their current bosses) and make other arrangements. I once had to travel to a firm three times to meet with attorneys during a job search, and the last time was for a ten-minute interview with one person! Firms should try to do screening interviews by phone whenever possible.

In addition, firms should not grant interviews out of kindness or because of office politics when there is no chance the candidate will be hired. Sometimes, I have seen firms offer interviews to a client’s relative just to show the client they care about them, and this is usually fine. However, one time, I was tasked with interviewing a job candidate after our firm had experienced rounds of layoffs and financial uncertainty. There was no way we would hire new people in this situation, but our firm still “interviewed” a candidate since this person had connections to one of the partners. All things being considered, the kinder option might have been to not waste the candidate’s time with an interview when there was no way that candidate was going to be hired by our firm at that time.

All told, the hiring process at many firms is brutal, and one of the worst parts about this process is how long it typically takes to hear back from firms. The job search often takes months, and job candidates often need to attend multiple interviews and won’t hear updates throughout the process. Even though partners have a number of responsibilities, they should try to conduct the hiring process quickly and notify candidates of their decisions as soon as possible.

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

Every day of the Trump administration is like an extended issue-spotter law school exam. This afternoon, we’re headed for tax class. READY?

See how many potential problems you can spot here:

Charitable Organization A is a 501(c)(3) run by religious leaders who are campaign and policy surrogates for Government Official T in his desultory outreach efforts to a particular minority group. Organization A holds public events at which it hosts speakers touting Official T’s policies while simultaneously giving away envelopes of cash to attendees, who must be present to claim their prizes. The cash comes from anonymous, tax-deductible donations to Organization A. At one such event, the host handed an envelope of cash to the mother of a well-known sports figure, joking, “She don’t need the money. She do not need the money!” When questioned about the propriety of the cash disbursements, the religious leader claimed it was fine because he required recipients to fill out a W-9 tax form. 

It’s funny, because it’s true. As Politico reported this morning, Pastor Darrell Scott, who co-chairs Black Voices for Trump along with Diamond and Silk and Herman Cain, founded the Urban Revitalization Coalition in 2017. Since then, Scott and the Coalition’s co-founder Karim Lanier have met with multiple Republican officials at the White House to promote Trump’s proposed Opportunity Zones under the First Step Act.

The Coalition’s $30,000 giveaway scheduled to honor Trump and Jared Kushner last week at the historically black Union University in Richmond was canceled by the school. But at the group’s “Christmas Extravaganza” in Cleveland, deputy presidential assistant Ja’Ron Smith and Fox’s Geraldo Rivera were in attendance. That evening, Lanier gave a speech comparing Democratic scrutiny of Donald Trump “to the plight of wrongfully incarcerated black men” and describing him as first president in the history of this country to incentivize people who have the money to put it into … urban areas.”

Then they gave away $25,000 in cash to multiple recipients whose names were drawn from a bin, including a woman dressed as an elf who shouted “Four more years of President Trump. Yay!” and the mother of Golden State Warriors forward Omari Spellman. Which suggests that these cash disbursements were simply random gifts to people willing to listen to Trump campaign surrogates talk, rather than tailored to a specific charitable purpose.

Or, as Marcus Owens, former director of the Exempt Organizations Division at the Internal Revenue Service currently in private practice at the law firm Loeb & Loeb told Politico, “It’s not immediately clear to me how simply giving money away to people at an event is a charitable act.”

Asked about the legality of the giveaways in a brief phone interview, the Urban Revitalization Coalition’s CEO, Darrell Scott, said that most gifts were between $300 and $500, and that the group mandates that anyone who receives over $600 fills out a W-9 form in order to ensure compliance with tax law. He did not respond to follow-up questions about how the giveaways were structured and whether they met the legal standard for a charitable act.

Scott declined to name the donors funding the effort. “I’d rather not,” he said. “They prefer to remain anonymous.”

Do charitable institutions regularly issue W-9 forms to aid recipients? Is a MAGA rally a charitable purpose? Should Darrell Scott, a guy who once accused Democrats of “st[anding] next to the inner cities just like a pimp stands next to a prostitute,” really be handing out envelopes of cash in a major metropolitan area to a room full of African Americans? And how long will the IRS agent on this case have to lie on the floor before the room stops spinning?

Trump allies are handing out cash to black voters [Politico]

Otherwise [senators that vote against witnesses in the impeachment trial] you’ll never be able to explain the way you voted without adopting this remarkably absurd and extreme and dangerous theory that my former colleague Alan Dershowitz is peddling. Namely, it doesn’t matter if a president uses the vast powers of his office to shake down an ally and help an adversary in order to get dirt on an enemy and corrupt an election. That doesn’t matter and therefore you didn’t need to hear any witnesses. But nobody will really accept that as a plausible theory. In fact, there is no legal scholar in the country, other than Alan Dershowitz, who believes it.

—Laurence Tribe urging senators to vote to hear witnesses in the impeachment trial on MSNBC throws shade at Alan Dershowitz and his… evolved theory of impeachment. Tribe goes on to say of Dershowitz’s legal theory, “Not only is he out of a limb from other constitutional scholars, he’s out on a limb from the framers of the constitution.” Burn.

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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).

No, that was not an earthquake that rocked Los Angeles, and the world this past Sunday, although it certainly felt like one. It was the news that Kobe Bryant, retired Laker superstar, lost his life in a helicopter crash. His 13-year-old daughter, Gianna, died with him, along with seven other adults and children, whose lives may not have been as well known, but were of equal value.

What caused the deadly crash? To be determined; there could be multiple causes. It will be a while until we know.

There has already been a lot of conversation about Kobe’s legacy and that will continue in the days, weeks, months, and even years ahead. He was only in his early forties, and had already begun his post-Laker life, including winning an Oscar for his animated short film, Dear Basketball.

But his legacy is not untarnished. Would his Colorado sexual assault case have concluded in the same way now, in these #Me Too days? No way to know.

What does it mean to leave a legacy? Abraham Maslow said that once a person’s basic needs are met, he or she wants to feel that his or her life mattered. It’s a pyramid: physical, security, social, ego, and at the top, self-actualization. That’s one way to look at a legacy, that the person has made a difference, whether it makes a difference to one person or a group of people. It is placing a personal imprimatur on the future. It’s making a contribution in any number of ways. Kobe did so. He was devoted to basketball, but once he left that behind, his focus was on family and various business ventures. Family mattered to him, especially given the amount of time he had to devote to the game to the detriment of everyone and everything else.

What will be your legacy to our profession? I asked that question two years ago, and I ask it again now.

How do we want to be remembered by our peers, our clients, our colleagues, even opposing counsel? What matters to you in terms of a legacy? Lots of reported cases that have changed the law in a particular area? What if it was only one case, not reported, but it made a major difference to your client? A transaction that allowed your client to start or expand a business? A bankruptcy filing that allowed a client to get out from under and start fresh? (Yes, I know that there are some who think that bankruptcy screws creditors, but get over it.) Acquittal in a criminal case that allowed a client to keep her job?

How about mentoring? Helping younger lawyers navigate through the perils of practice. If anyone says there are no perils of practice, I say phooey. I don’t care whether younger lawyers say that they don’t need any guidance, they do. They’re not being candid with themselves and with the disciplinary system if they get into trouble because of incompetence in handling a matter.

What about pro bono work? Do lawyers still make time for it? As we dinosaurs retire, are pushed out, or take a hike, is pro bono a way to leave a legacy?

I hope people will remember Bryan Stevenson, the founder of the Equal Justice Initiative in Montgomery, Alabama, who has saved people from death row and prompted the United States Supreme Court to modify how juvenile defendants are punished. The Equal Justice Initiative also created the Legacy Museum and the National Memorial for Peace and Justice. If you haven’t read Stevenson’s book, Just Mercy, or seen the movie of the same name, do so.

With rare exceptions, lawyers are not celebrities in any lasting way. Not like a sports icon such as Kobe Bryant. Even if a lawyer becomes a celebrity, it is usually in the context of a particular event, and once that event or case ends, it’s usually phffft for his celebrity. People remember cases, but rarely the lawyers.

A legacy can be good or evil — or both — at the same time. This week marks the 75th anniversary of the liberation of Auschwitz. The concentration camp was the personification of Nazi evil. However, it was, and remains to this day, a legacy of how individuals can survive the worst of circumstances and tell their stories of survival to generations who have no clue about what happened and who need to know and understand.

In a world dominated by talking heads and nasty Twitter conversations, we forget how to feel. Lawyers are told to detach, to remain uninvolved. Unfortunately, that slips into personal lives as well.

Maybe Kobe’s legacy, at least a part of it, is one that we all would do well to acknowledge: life is fleeting, and tell people now, while they are alive, what they mean to you.  A “celebration of life” for one who is gone is too late.

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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.

Andrew Paul Leonard is a photographer whose primary focus is microscopic imagery. (Disclosure: my firm has represented Leonard in the past, though not in this case). In his travels through the human anatomy, he once had the occasion to create a compelling and colorful image of human bone marrow stem cells. The National Aeronautics and Space Administration, run by the U.S. government, found Leonard’s work noteworthy and published this photograph on its website. In doing so, it did not reach out to him or otherwise gain his consent. The NASA page on which the photograph appeared was created in 2004, updated for the last time in 2007, and was still online in the three-year window before Mr. Leonard filed a copyright infringement lawsuit over the usage in 2018

After being served with the complaint, the guv’ment called foul, arguing to the court that Leonard was dilatory and that his suit was barred by the statute of limitations, which is generally three years from the date of the discovery of the infringement. The court was tasked with deciding whether the relevant acts of alleged infringement began and ended in 2004 or whether the site being online in the three-year window was sufficient for the case to move forward.

In the past, it was no big whup to nail down the date on which an infringement started and ended. For an infringing film, you looked at the film’s opening date and the date it vacated theaters, for example. Or, when a film was released on DVD, you could with relative ease identify the dates on which the DVDS were distributed. And it was universally understood that each showing or distribution of an infringing copy of a film was a violation of a copyright holder’s Section 106 rights for purposes of the statute of limitations.

But, today, when so much of the world’s copyright infringement, like everything else, has abandoned the physical world and migrated online, it is far more difficult to ascertain the dates on which a series of infringing acts begins and ends. And this is important, because (setting aside the discovery rule and tolling) a copyright case cannot proceed unless an infringing act separately accrued within the three-year window before the complaint was filed.

The Supreme Court, in Petrella v. MGM, noted this “widely recognized” rule of separate accrual for copyright claims and concluded that a copyright holder could, at the very least, recover for any acts of infringement that took place in the three years preceding the filing of the complaint.

Per this rule, “when a defendant commits successive violations, the statute of limitations runs separately from each violation.” Thus,” each infringing act starts a new limitations period,” and a defendant who has “engaged (or is alleged to have engaged) in a series of discrete infringing acts” is liable for those that fall within the three-year window. This holding established that every act of copyright infringement within that window is an independently actionable legal wrong, and a copyright holder will not be faulted for “sitting still, doing nothing, [and] waiting to see what the outcome of an alleged infringer’s investment will be.”

The question that arises modernly, though, is when the statute of limitations bars claims for infringing content published online. If a website posted an infringing photograph or story back in 2005 and continued to host the infringing material online until 2020, there is a lack of clarity as to whether an independently actionable legal wrong occurred within the three-year window.

Courts have addressed the question in a number of ways, with the best analysis recently issuing from Leonard’s case, which dug deep into the above facts in reviewing the Government’s motion to dismiss. The court in the case entitled APL Microscopic, LLC v. United States, 144 Fed. Cl. 489 (2019) engaged in a thorough and nuanced look at the language of the Copyright Act’s Section 106, which delineates a copyholder’s exclusive rights, and noted that at least two of those rights are violated in a separately accruing fashion when an infringing website remains online within the three-year window.

The court points to the copyright holder’s exclusive right to “display the copyrighted work publicly” and notes display in this context means “to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process[.]” Given these statutory definitions, the court readily concludes that “each time a user viewed NASA’s webpage, [Leonard’s] copyrighted Work was displayed on the user’s computer,” and each display is a separately accruing act that “infringes on the owner’s right of public display.” As it is likely that such viewership occurred while the infringing website was on line during the three-year window, the court finds for the photographer and denies the motion to dismiss.

The APL court also found that a website owner that publishes infringing content engages in a separately accruing violative act each time it “distributes” a work in contravention of the artist’s exclusive right to distribute her work. The court rejected the government’s assertion that a distribution occurs when a work is “made available” for distribution, and instead holds that infringement of the right of public distribution under Section 106(3) requires “actual dissemination of either copies or phonorecords.” Thus, NASA’s “act of transmitting the webpage — and the [Leonard photograph] therein — to a user would infringe on this right.” And to the extent this happened within the three-year window, such conduct would be inside the statute of limitations.

NASA must thus answer for its use without consent of Leonard’s work. And this APL decision will chart the course for courts in online exploitation cases grappling with the question of when infringement begins and when it ends.

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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.