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Why Law Firms Are Moving to the Cloud

Why Law Firms Are Moving to the Cloud

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The first half of 2019 has had an exciting number of interesting copyright stories, particularly with SCOTUS involvement in a number of cases. Here’s a look back at some of the most significant copyright stories in first six months of this year.

SCOTUS Clarifies When Registration Occurs for Purposes of Initiating Copyright Litigation

In Fourth Estate Public Benefit Corp. v. Wall-Street.com, SCOTUS unanimously held that copyright litigation may not begin until after the Copyright Office has acted upon a registration application. At issue in the case was a determination of what counts as registration for purposes of initiating litigation: the filing date, or the actual grant of a registration certificate by the Copyright Office. During oral arguments, the justices addressed many of the practical implications of permitting litigation to proceed prior to Copyright Office registration, questioning what would happen if the Copyright Office later determined that the particular work-at-issue was not eligible for copyright protection. The Court unanimously agreed that merely filing for registration is insufficient for litigation purposes.

SCOTUS Agrees to Hear Two Copyright Cases in October 2019 Term

At the end of the 2018-2019 term, SCOTUS agreed to hear two cases with potentially significant impacts for copyright in the upcoming term. The first case, Allen v. Cooper, involves a question of whether states can invoke sovereign immunity in copyright infringement cases or whether sovereign immunity was properly abrogated by the Copyright Remedy Clarification Act (CRCA). While the Court has never determined whether CRCA was a valid exercise of Congressional authority, in 1999, SCOTUS issued a pair rulings in the patent and trademark context (known as the Florida Prepaid cases) finding that the Plant Variety Protection Remedy Clarification Act and Trademark Remedy Clarification Act did not validly abrogate state sovereign immunity. Since then, courts have almost uniformly applied Florida Prepaid to the copyright context and allowing states to continue asserting sovereign immunity in copyright infringement cases.

The second case, Georgia v. Public.Resources.Org involves a question of whether annotated state laws are in the public domain or whether they may be copyrighted. The Eleventh Circuit issued a narrow ruling applicable to the specific facts of the case that because the annotations of the Georgia State Code were done at the direction of the state and intertwined with the law itself, copyright protection did not apply and the annotated code is in the public domain. While it was unsurprising to see the state of Georgia appeal the ruling, what is curious about this particular petition for writ of certiorari is that the winner in the Eleventh Circuit, Public.Resources.Org, supported the petition.  It’s quite unusual to see a winning party support review by SCOTUS.

Published Works Enter Public Domain in United States for First Time in 20 Years

Due to the Copyright Term Extension Act in 1998, a 20-year moratorium was placed on published works entering the public domain in the United States. January 1, 2019, saw a number of significant cultural works enter the public domain, such as Charli Chaplin’s film The Pilgrim, Cecil B. DeMille’s film The Ten Commandments, Kahlil Gibran’s book The Prophet, Agatha Christie’s Murder on the Links, e.e. cumming’s Tulips and Chimneys, Hungarian composer Bela Bartok’s Violin Sonata No. 1 and 2, and several compositions by the likes of Louis Armstrong, George Gershwin, Oscar Hammerstein, and John Phillip Sousa. These, and other works, are now free for all to use, without seeking permission from the rightholder. Assuming we don’t see another copyright term extension in the United States, each year we can look forward to New Year’s Day as Public Domain Day, in which we will welcome the available of new works to the public domain.

EU Adopts Directive on Copyright in the Digital Single Market

After years of discussion and consultation, the EU passed its Digital Single Market Directive, significantly altering the copyright landscape. Two articles in particular garnered a lot of attention. One concerns a “link tax” which would allow publishers to charge platforms to display a brief snippet and link to the story. Such a practice could exponentially increase costs and ultimately be impractical. The other extremely controversial provision involves automated filtering, placing a burden on platforms to monitor user uploads and prevent infringing content from being uploaded to the platform. Automated filtering is notoriously problematic and algorithms are ill-equipped to understand free speech or limitations and exceptions. Now at the implementation stage in individual EU countries, looking at exactly how the directive plays out in implementing legislation is something to watch.

Will SCOTUS Hear Case Involving Copyrightability/Fair Use of Software Interface?

I’ve written about the long-running saga involving litigation between Oracle and Google before (and DisCo Project has a great timeline and comprehensive coverage of the case), and many are closely watching to see whether SCOTUS will accept Google’s petition for cert in the case involving two critical questions: whether copyright protection extends to application programming interface (APIs) and, if it does, whether Google’s use of the Java interface was fair use. While the jury in the case found in favor of Google, the Federal Circuit twice reversed. The Federal Circuit’s decisions were significant, altering both the common understanding of copyrightability of API and also imposing a novelty standard in the fair use calculus that has not previously existed. Should SCOTUS accept cert, expect this to be the most closely watched copyright case for the term given the immense impacts the ruling will have on technology, computers, and software.

Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at kristay@gmail.com.

The Democrats’ interminable battle to look like they’re conducting impeachment hearings without actually conducting impeachment hearings continues. Today, the House Judiciary Committee subpoenaed 12 Trump associates.

I expect they’ll be ignored, but let’s play our game. Here’s the list:

1. Jared Kushner
2. John Kelly
3. David Pecker
4. Jeff Sessions
5. Rod Rosenstein
6. Michael Flynn
7. Rob Porter
8. Dylan Howard
9. Keith Davidson
10. Rick Dearborn
11. Corey Lewandowski
12. Joseph Hunt

This is a good list. The scope of the subpoenas includes “everything from Russian interference to hush-money payments he made in the months leading up to the 2016 election.”

It’s also a list of people who will, most likely, do everything they can to resist complying with Congress. Since taking power, the Democrats have yet to show the will or ability to hold anybody accountable for ignoring their authority. I therefore imagine Trump officials and sycophants will continue to ignore Congress, until Congress does something to change their calculus. Somebody needs to be made an example of, so that the others know that merely doing the bidding of the corrupt and criminal president has consequences.

I doubt anybody will be made an example of. The people on this list will use every procedural delaying tactic available to them. Then wait for the Democrats to threaten to hold them in contempt. Then wait even longer for the Democrats who are actually ready to vote on contempt, then “strike a deal” to turn over an Excel spreadsheet detailing fake measurements of Trump’s hand size.

House panel OK’s 12 subpoenas for Trump associates, including Kushner, National Enquirer executives [USA Today]

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

I kept my underwear on during the massage… I don’t like massages particularly.

— Alan Dershowitz, via Skype, trying to explain why he was in an alleged sex trafficker’s house but was only massaged by an “old, old Russian woman” and had no clue what was going on in the rest of the house. Dershowitz also said: “Were there young women in another part of the house giving massages when I wasn’t around? I have no idea of that.”

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

Jerome Dunbar has allegedly been practicing law in Connecticut for 13 years. Only problem? He’s not an attorney. Yikes.

According to the arresting documents, since 2006, Dunbar has represented clients in Connecticut Appellate Court, Connecticut Superior Court, Connecticut Housing Court, and Connecticut Department of Labor hearings. That’s an impressive record even for a real esquire.

But the question remains: how exactly was Dunbar able to get away with allegedly practicing law without a license for so many years? As reported by Law.com, Dunbar seems to have thought the title “attorney in fact” would allow him to practice:

The arrest affidavit said Dunbar told authorities he believed he was within his rights to represent clients because he was using the title “Attorney in Fact.” But in presenting himself as an attorney when he was not one, Dunbar violated the Connecticut General Statute, according to the affidavit.

Obviously, that was not the case, and indeed, the Office of Chief Disciplinary Counsel (OCDC) told Dunbar that in 2007. They told him an “attorney in fact” didn’t give him “the right to act as a legal representative in a court or quasi-legal forum.” Dunbar responded in 2007 that he used the wrong terminology and the OCDC closed the case that year.

Again in 2010, the OCDC told Dunbar he could not represent clients in an administrative hearing after receiving additional complaints about him. But according to the arrest warrant, since 2014, the OCDC continued to receive complaints about Dunbar.

On July 3rd of this year, Dunbar was charged with seven counts of unauthorized practice of law, and faces up to five years in prison and a $35,000 fine. He is being held on $25,000 bond pending a July 29th court appearance.

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).

Law firm marketing is at an inflection point. Today’s legal clients scrutinize their spending and are well informed about prices, value, and competitive alternatives. This necessitates insight-driven marketing and business development strategies.

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Fast forward this to Zimbabwe’s fast-moving political events just after Robert Mugabe fired his then Deputy President, Emmerson Mnangagwa who immediately hinted he will be back in a matter of weeks. Indeed, this came to pass, but not before tanks, guns and gunpowder was involved. Yet, since that ‘smart’ coup of November 2017 and the disputed election of July 2018, political events have moved quickly in Zimbabwe. It is becoming clearer that for the then Deputy President to come back he had to strike a deal with various factionalism in the Zimbabwe African National Union-Patriotic Front (ZANU PF) and importantly with the army generals who were increasingly feeling insecure about their future under Robert Mugabe. The bargain went further and roped in South Africa and other global super powers global players like the UK and China who wanted to see the back of Mugabe. Internally the new President had to strike a bargain by parcelling off powerful positions to the men and women in the army, especially appointing them to cabinet and dishing out Ambassadorships. That bargain included carting off the old nationalists to the party positions in the Stalinist like Politburo yet reserving the powerful position of Political Commissar to the military men. Although “ED” walked into state house after all these bargains, it seems the melting political economy is now making these backroom deals look like the proverbial ‘sailor’s weight’ that will sink his Presidency.

The political economy situation in Zimbabwe continues on a downward spiral. Measured against any metric that one can conjure up things are looking really bad. Yet, against this evidence the President’s social media messaging continues on a very parallel universe with posts disconnected from the reality in the country. And to top this off, the political elite continue hammering on a political dialogue that can only be summed up as a pre-emptive but chimerical pretence on the much-needed comprehensive dialogue. Firstly, the labour unions have re-started negotiations with the government which is the largest employer and the government has very little room to cushion the over a half a million workforce. Secondly, in the private sector banking employees have started demanding for the review of their salaries to match the rise in inflation and this is most likely to be a demand from other unions and workers. Thirdly, inflation has started marching up with no restrain and this means that people’s incomes are being eroded and prices have been rising at alarming levels. Fourthly, the government has started a full-scale crackdown on political and human rights activists. Add to this matrix that the MDC Alliance has completed its congress and now they have turned full scale to face the ruling political class. The combination of these factors are mixing up a very explosive situation and if the citizen does not revolt early enough there is a very chilling prospect that there will be a real coup in Zimbabwe this time around.

Social Discontent is rising: Will Junior Officers Behave?

The coup beneficiary President has shuffled and reshuffled police commanders around, has ‘managed’ to slowly purge military commanders and has so far pacified the out of control intelligence services which Mugabe depended on. Some military commanders were promoted internally, some appointed into the government directly as Ministers, some as Ambassadors and some of them have become senior bureaucrats across the party and the civil service. But one thing is common here. The military senior officers have become ‘shareholders’ and in that sense have worked through the economic system to become an autocratic-crony capitalist class. The senior military officers are well taken care of and their rotund bellies says it all. They have lucrative farms, some have mining claims, involved in diamond mining, some are ‘silent’ partners in many contracting businesses and they have built mansions in Northern Harare. They have become a network of parasites on the economy and they are living plush lives of chartered jets, foreign hospitals and enjoying kickbacks from the cartels that span through the foreign currency dealing and the petroleum industries. In a word, they don’t pay for anything at all. The Rhodesian farmer-settler and the colonial company capitalist class who used forced labour plundered land and took over vast amounts of land will be green with envy.

What the military strategists are not paying attention to is that as the military changes and is re-configured to meet the loyalty of the new emperor this is building dissent in the ‘officers’ mess’ as the saying goes. Add this disgruntlement to the rising temperature and social discontent this can eventually whip up the junior officers out of the barracks into a real non-cosmetic coup. And coups that are conducted by junior officers can be very messy and bloody business. A messy coup often involves the rounding up, arrest, detention, torture and even execution of the top elites of the political class. In Ghana when Jerry Rawlings took over a few of the elites were executed, in Nigeria’s coup and counter-coups often top political elites were executed; same goes in historical revolutions like the French revolution, the Bolshevik Revolution and the Chinese-Maoist Revolution. But the bloodbath will not stop there. If the barracks are not united, with no central command, there will be countermanding of orders, other security services will join in, and in that melee, little warlords controlling different operational zones will emerge. The state will have collapsed. By bringing back the military into the factional contest of power in ZANU PF and in the country’s political-electoral landscape the floods have been opened and the junior officers are now on the loose. Sudan has become the latest state to have soldiers go haywire and there are claims or a coup, counter-coups and in that scenario, it is the constitutional republic that gets buried. In our case, we need to watch the Commando Barracks and the Presidential Guard closely, for we might have now entered the era in which ‘the gun now commands politics’ and ‘soldiers without ideology’ reign supreme – mercenaries.

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After topping Mugabe, Mnangagwa had an enormous task facing him trying to please his erstwhile conspirators by appointing them into the cabinet. He also attempted to cure the coup and legitimise his power through the elections. With almost 18 months after the coup, Zimbabwe has been faced with political and economic instability and the country is literally seating on a knife edge. It seems the cart is slowly wheeling off towards the cliff, thus signalling a not so good-looking future. While there have been arguments that the coup managed to address ZANU PF internal political contradictions at the time, the passage of time has disproved that thesis. Already, the ugly head of factionalism is rearing its head and the statements of the ZANU PF Youth and Women’s league are the tell-tale signs. Already, the ground is becoming fertile for another ruction and begs again if this would not be from the barracks. But the real question would be from which section of the Barrack?

ED’s Missed opportunities

Mnangagwa has missed opportunities to “cure the coup”, particularly the failure to create stable transitional mechanisms.  Mnangagwa and his co-conspirators unwittingly attempted to “cure” the coup through a manipulated “election” and this strategy has backfired and the sooner they come to terms with reality the better. Unbeknown to Mnangagwa was that the ball was in his court and he had many options to redeem himself as a unifying leader. However, his lack of foresight has exposed him as a greedy person with no strategy of moving Zimbabwe forward. One of the simplest and many options available to him at the time was calling for a genuine national dialogue of all stakeholders, not for the purposes of power sharing but rather to chat the way forward for Zimbabwe towards political and economic reforms to address the 37-year rot created by Mugabe. This kind of dialogue would have come out with clear timelines on fundamental reforms at the same time as one of the main steps in curing the coup. It would had also helped to cool down the political temperatures and depolarise our politics. However, that did not happen, as Mnangagwa became consumed and intoxicated by power, allegedly building his power around a partisan and parochial tribal agenda.  Mnangagwa has been busy focussing on consolidating his power at the expense of building a nation, forgetting Lord Acton’s warning: “Power corrupts, and absolute power corrupts absolutely”.

A regime in fear

 The unfortunate and terror events of 1st of August 2018 and 14th-16th of January 2019 exposed the true colours of the Mnangagwa administration. It became apparent that the military is the underwriter and as such, when their power was threatened, they resorted to their real character: violence; murder and impunity. Their actions since November 2017 typifies of a lot that is living in fear, the fear not from the opposition but amongst themselves and particularly the men in in uniform.  The fact that they are constantly reshuffling the command within the security forces is testament to the heightening levels of insecurity. More so, the alleged reports indicating that the government gave soldiers RTGS$400 cushioning allowances versus RTGS$97 allocated to the rest of civil servants indicates a divide and rule strategy that seeks to pacify the army. The reasoning is all apparent to everyone: buying loyalty of the gun as a hungry soldier cannot be trusted. But the question is whether the strategy is sustainable in the long run.

The Achilles’ heel of coups

The coup plotters justified their action of overthrowing President Mugabe’s government in November 2017 being necessitated by the need to address the economic and political crisis facing the country then. However, fast forward to Mid-2019, the situation has moved to another new level as workers’ and ordinary citizens’ earnings, pensions and savings have been eroded and withered by inflation and currency devaluation. The worsening economic conditions will most likely lead us to squabbling within the cockpit as opportunities for arbitrage decline, thus creating ripe conditions for another coup. McBride and Coulier in their 2004 paper “Crises, Coups, and Entry-deterring Reforms in Sub-Saharan Africa’’, in their analysis of coups in Africa advance reasons that generally lead to military intervention: personal greed; hope to extract once they gain power or directly control the state. This fits well in our case, as military chiefs have now become an economic class with its own distinct interests. A reading of Jabusile Shumba’s book “Zimbabwe’s Predatory State: Party, Military, Business” and  Richard Saunders and Tinashe Nyamunda’s book “Facets of Power: Politics, Profits and People in the Making of Zimbabwe’s Blood Diamonds” give a some glimpses and insights on how this military business class has become embedded in the economy. Therefore, it is not without doubt that the coup was a ‘military class project’ with a personal accumulation thrust.  The soldiers are now openly and actively involved in the control of the country’s mines, and other strategic points of economic interest.  The military assisted transition in Zimbabwe seems to have failed to bring any meaningful change in people’s livelihoods and this is not unique, and Decaldo argues in his 1986, ‘African Studies and Military coups in Africa’ that, “the military has not been able to generate economic development”. Military assisted transitions always come on the backdrop of well-meaning rhetoric but always fall short on action. It is fast becoming clear for everyone that apart from personal accumulation and self-enrichment, the current administration is as clueless in so far as economic development is concerned. For instance, the sucking in of the Minister of State Security in the Gaika Mine in Kwekwe despite a standing court order barring the mine invaders point to a bleak economic future.

The recent ambush and guerilla style re-introduction of the Zimbabwe Dollar and banning of the multi-currency regime is alleged to have been done as a strategy to pacify the men and women in uniform who had started to demand being paid in American dollars to cushion them against dollarisation. The drastic measures on currency reforms have been described by the Zimbabwe Coalition on Debt Development (ZIMCODD) as policy inconsistencies and premature reaction on the part of the government. In their statement, ZIMCODD said instead there was a need for addressing the root cause of the current currency crisis which is, “rampant corruption, mismanagement of public finances and impunity being enjoyed by those that are fuelling the crisis through arbitrage and resource bleeding.’’  Dealing with corruption and arbitrage means taking the feeding trough away from the wannabe military capitalists and creating ructions in the cockpit; yet, not doing so, means ripening the polity for revolt. Hence, I argue that without proper reforms and a different way of doing things Zimbabwe is destined for another military coup, but this time not from the top brass but the junior ranks. There is a need for inclusivity and genuine dialogue of all stakeholders, with the genesis of all being to address the political reform agenda to boost confidence in the economy. Political reforms are essentially the roadmap to curing the coup and any short cut will have disastrous consequences. There is a dark cloud of uncertainty and fear not only amongst Zimbabweans but largely amongst those who plotted the coup, no one really knows what tomorrow is in store for them. The economic meltdown is in itself a ticking time bomb that when it explodes the whole country will be burnt. Historically, coups in their very nature do not just end without another one occurring if their initial fundamental causes are not addressed. The economy remains the Achilles’ heel, and it will just take one daring junior officer and the rest can be history.

Forewarned is Forearmed!

It is clear that the current trajectory by the Mnangagwa administration in dealing with the political and economic crisis facing the country will most likely lead us to another ‘military assisted transition’. The conditions that led to the November 2017 coup seem to be multiplying exponentially as each day passes and this is creating a ticking time bomb.  If things are left unresolved one may not rule out another coup happening as history has shown us that if coups are not cured, they are bound to happen again. There is a need to cure the coup by embarking on drastic and genuine political and economic reforms that will enable the economy to be on its feet again.

Blessing Vava is the Regional Coordinator of the Crisis in Zimbabwe Coalition. He writes here in his personal capacity.

Post published in: Featured