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Although almost 600 people have died from the coronavirus that originated in Wuhan, China, and more than 28,000 others have been infected, the World Health Organization has stopped just short of declaring the virus a pandemic, instead referring to it as a “public health emergency of international concern.” The illness is so concerning, however, that law schools have started to take notice, and one has even taken steps to suspend its annual study abroad program in Beijing.

Professor Robert Hu of St. Mary’s University School of Law has taken about 20 law students to China for a five-week study program each summer for the past decade, but this summer, the school simply isn’t willing to risk its students’ health. “Some of our students were disappointed,” Hu said, “but we told them, look this is really for the safety of everybody involved.” Local news outlet KENS 5 has additional details:

“When we found out from the U.S. State Department [that they] issue[d] the advisory which says American citizens should not go to China and also the WHO, the World Health Organization, considered the Chinese situation a public health emergency globally, we decided out of [an] abundance of caution for the safety of our students we should suspend the program,” Hu said.

Hu said major airlines canceling their flights to China also played a role but in the end he stressed, it’s always better to be safe than sorry.

“We don’t want to take risks at all.”

Hu says St. Mary’s Law will resume the study abroad program in China next summer.

Is your law school changing its plans when it comes to study abroad programs due to the coronavirus? Please get in touch with us and let us know. Thanks!

St. Mary’s School of Law suspends study abroad program in wake of coronavirus outbreak [KENS 5]

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.

In Summary

• The death toll from the coronavirus in mainland China had risen to 490 as of Wednesday with 24,324 infections so far.
• A number of African countries have moved to restrict travel to China, but Zimbabwe has only encouraged its nationals to postpone their trips to China until the outbreak is brought under control.

Zimbabwe has put 506 people under surveillance after they recently travelled to Chinese cities that are now hard-hit by the coronavirus outbreak.

Health and Child Care minister Obadiah Moyo said people returning from worst-hit areas in China had been asked to self-quarantine in their homes for two weeks and are restricted from going to public spaces such as offices or any gatherings.

“Rapid response units will also be set up in all provinces and at all border posts,” Information minister Monica Mutsvangwa told journalists in Harare. “Further updates will be made available in order to safeguard the nation at all times.”

The isolation and quarantine units have been established in Harare, Bulawayo and Victoria Falls. However, no one has been admitted at the centres so far.

The death toll from the coronavirus in mainland China had risen to 490 as of Wednesday with 24,324 infections so far.

Cases of the flu-like disease have also been recorded in over a dozen countries.

A number of African countries have moved to restrict travel to China, but Zimbabwe has only encouraged its nationals to postpone their trips to China until the outbreak is brought under control.

Dr Moyo has insisted that the country’s health institutions were ready to deal with a coronavirus outbreak.

“Everyone is ready and the country is well equipped,” he said.

China’s ambassador Zimbabwe Gao Shaochum said the Chinese community was being sensitised about the outbreak.

“Those who have returned from the most affected regions in China, such as Hubei Province, are advised to delay coming back to Zimbabwe until the situation eases in order to reduce the risk of bringing the virus to Zimbabwe,” Mr Gao told The Herald newspaper.

Zimbabweans that regularly travel to China include students and informal traders.

The southern African country also has a big population of Chinese nationals working on various projects funded by Beijing.

The projects include the construction of a “new capital city” on the outskirts of Harare where a new Parliament building is being built.

Zimbabwe’s health system is bearing the brunt of an economic crisis that has left hospitals without equipment and drugs.

Last year, doctors went on a four-month long strike demanding an improvement in their working conditions and payment of salaries in foreign currency.

Last month, Zimbabwe billionaire Strive Masiyiwa, through his philanthropic arm Higher Life Foundation, offered to pay the doctors a monthly allowance of about $300 for six months so that they go back to work.

Post published in: Featured

In that regard, Zimbabwean President Emmerson Mnangagwa on Wednesday met with United Nations Economic Commission for Africa (UNECA) executive secretary Vera Songwe to discuss the upcoming conference, which will be held from Feb. 24 to 27 in the resort town of Victoria Falls.

The conference, which is the biggest to be held by UNECA, will bring together over 2,000 delegates from United Nations (UN) agencies, African governments and other development partners.

After her meeting with Mnangagwa, Songwe thanked the Zimbabwean government for agreeing to host the forum.

“This is one of the biggest meetings that we as the UN in Africa host, the Africa Sustainable Development Forum and essentially we bring together all of the UN family and all of the member states of the continent to talk about Sustainable Development Goals,” she said.

The aim of the SDGs is to improve the quality of life of people in all aspects by 2030, with a major focus on health, education and job creation among others.

“This year is particularly important because we have 10 years to get to 2030 and it is also part of a slice of 2063, the Africa we want, which is the African Union agenda. It really brings everybody together to see what else we need to do to get there,” Songwe said.

She said Zimbabwe represented some of the successes, expectations and challenges that Africa was facing in achieving sustainable development.

“The continent can learn a lot from what you are doing in the ICT sector but you also have challenges with climate change and its consequences,” the UNECA boss said.

With energy production in the region having been hit by frequent drought, Songwe said it was imperative to look at renewable energy and the role of regional power pools to ensure African economies are not affected by power shortages. Enditem

Post published in: Featured

* Bernie Madoff has asked to end his prison sentence early because he is allegedly dying of kidney disease. [Reuters]

* Law firms are cashing in on representing the estate of Jeffrey Epstein. [New York Post]

* Oh Snap! The top lawyer at Snap, Inc. earned around $9 Million in 2019. [Bloomberg Law]

* A Long Island man who was exonerated in the murder of his parents was just sworn in as a lawyer. [New York Post]

* The Supreme Court may decide to hear a case about the legality of the Affordable Care Act this month. [Hill]

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.

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.