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Friday
Dec202013

Things to be on the lookout for when hiring an attorney.

I've never understood why attorneys who engage in very un-attorney like behavior broadcast their indiscretions by filing a public lawsuit.  

 

To illustrate this point, take a look at this recent headline from a Texas newspaper: 

Houston attorney sues psychic, claiming breach of contract over 'love ritual'

 

Adding to the amusement, the defendant is the Psychic Love Spell Center.

 

I've always believed that one difference between a good attorney and a poor attorney is that a good attorney knows when to advise a client not to file a lawsuit.  This article only serves to confirm my belief. 

Friday
Nov222013

Thank You WordPress

I deal with bullies a lot in my line of work.  I respect a good argument, but I hate when somebody makes a legal threat despite lacking any basis for their threat.  These people usually assume that the subject of the threat willl not seek an attorney's advice.  Sometimes the subjects are smart enough to obtain advice.  Sometimes I am the attorney` they meet with.  When that happens, I've written some of my favorite letters in response.  I enjoy the feeling of putting a bully in their place.

 

WordPress also likes to take on bullies.  The Digital Millennium Copyright Act – or DMCA - is intended to protect copyrighted work.  There is a mechanism under the DMCA that allows the holder of a copyright to issue a takedown notice requiring a web hosting service to remove infringing content.  This mechanism is well itended.  Unfortunately, it is often abused.  A growing number of bullies have issued DMCA takedown notices to remove content they don't like rather than content that violates of copyright protections.  Simply put, these notices are fradulently issued to suppress free speech - and not to protect a copyrighted work.  For that reason they should be sanctionable.

 

I believe censorship is bad.  So does WordPress.  Mosting hosting providers simply reinstate the content if the author is able to demonstrate that the content does not violate copyright protections.  WordPress is taking it one step further.  They have filed a lawsuits against persons that have issued bogus takedown notices to WordPress.  The basis for these lawsuits is the provision in the DMCA that allows private causes of actions when a material misrepresentation is made in a takedown notice.  

 

There are challenges to these lawsuits.  Generally speaking, courts have very narrowly applied the "material misrepresentation" clause.  Courts often restrict recovery to those cases in which a false statements is made concerning copyright ownership.  They do not allow recovery when statements are made about the alleged infringing material are shown to be false.  WordPress will have their work cut out for them.  I wish them all the luck in the world.  Even if they fail, I hope that this will result in a change to the law.  It is sorely needed.  The law should not allow abuse of the DMCA so long as you have a valid copyright.  If you falsely state that content violates your copyright, you should be accountable for your abuse of the DMCA.

Wednesday
Oct232013

Know When to Keep it Simple

For lawyers, making a legal argument often feels like second nature.  We look for the issues and find the relevant law regarding those issues.  We do it all of the time.

 

Every now and then lawyers miss an important first step.  It is important to parse the issue itself, rather than jumping into the research.  Doing this will occasionally allow an attorney to see that the matter is not nearly as complex as they had originally been led to believe.  

 

Permit an example.  A friend of mine argued a case before the Supreme Court in another state.  There were some high-profile attorneys involved in the case who charged a lot more per hour than my friend.  The issue at stake was whether a business could erect a sign on their property.  The highly paid lawyers argued ad naseum about the nuances of land use law and its application to the sign permit.  My friend was given just a couple of minutes to address the court at the very end of the hearing.  He stood up and told the court that the "sign" was not actually a "sign" at all.  It did not meet the definition of a "sign" in the relevant code.  

 

The court agreed.  They ruled that the object was not a "sign" and there was, therefore, no impedement to putting up the object.  All of the highly paid lawyers had missed this crucial point.  

 

I've had cases of my own that have involved the very same concept.  To respect the privacy of my clients, I won't give the details - since it is nearly impossible to do so in a non-identifying way.  

 

Lawyers like complication.  We love to be challenged.  But we need to keep in mind that there is a time and a place for everything.  Simplicity often trumps complexity.

Monday
Jun102013

The Danger of a Troll

Copyright trolling has made quite a bit of news lately.  Even President Obama has come out against this problem.  The attention on this abusive form of litigation is welcome, if not overdue.

 

Arguably, the most egregious example involves an outfit known as Prenda Law as well as its successors and associates.  Prenda Law had an idea to make lots of money.  They represented pornography producers and went after "people" who illegally downloaded movies.  The profits were split 50/50.  Eventually, Prenda got tired of sharing the profits.  Through a series of Caribbean shell corporations, Prenda became its own client.  Recently, there is credible evidence that has come forward suggesting that Prenda even seeded its own movies in order to encourage illegal downloads of those movies.  When Prenda identified a "person" who downloaded their movie, they would demand approximately $4,000 to settle - which was a figure designed to be below the cost of defending against the allegation.  Prenda coerced people into paying the settlement rather than facing embarrassment.  

 

I could probably write a book on the abuses that were involved.  Perhaps the biggest abuse is that the identification was not that of a "person."  They only identified a subscriber of an IP address.  An attorney with a similar outfit recently admitted that the error rate in establishing the actual copyright infringer is as high as thirty percent.  A subscriber is not necessarily a downloader.  Perhaps the wifi network is unsecured.  Perhaps others live in the home.  Prenda claimed to have a method of determining the actual downloader, which proved to be little more than a mere assumption that a young male must have been the guilty party.  

 

The other major abuse was that the movies were not generally commercially viable in the first place.  Prenda found a way to turn a movie that had no commercial value into a potential multi-million dollar hit.  It has been alleged that some of the movies weren't even offered for sale.  Quite simply, it was more profitable to encourage piracy and reap judgments than to legitimately market the product.  

 

Fortunately, for consumers, it has all begun to unravel.  A court in California has just issued an $81,000 sanction against Prenda.  Other courts are dismissing their cases.  Many courts are becoming increasingly skeptical of Prenda's tactics.  But it should not have taken this long.  

 

This is one of many compelling examples of why changes are needed to copyright law.  Authors of creative works should be compensated, but copyright law should not create a windfall in and of itself.  The law should be designed to protect, not to enrich.  Hopefully copyright law will be modified soon.  The change is long overdue.

 

Wednesday
Apr032013

One Less Year of Law School?

I recently read that Drexel is offering a two year law school program.  The normal full-time program is three years.  If Drexel is able to maintain the quality of education, I applaud this move.

 

Let's make one thing clear.  Law school does not prepare you to be a working lawyer.  Law school is not trade school.  Law school education is an invaluable part of becoming a good lawyer, but theory can never replace hand-on experience.  For this reason, a law school graduate is not worth nearly as much as they would like to believe.  Law school graduates still require a significant amount of real world training.  Salaries for law school graduates must take this into account.

 

In this environment, job prospects for law school graduates are terrible.  Indepent of a poor economy, there are too many law schools pumping out too many graduates.  The profession itself is changing, leaving less room for new entrants.  Established attorneys seem to be weathering the storm rather well, but there are precious few new hires.  

 

The most recent statistics show that only 12.2% of law school graduates are employed by big firms within six months of graduation.  However, this includes graduates employed as paralegals and other such positions.  Only 25.5% of law schools could place more than 10% of their graduates in these jobs.  Only 56% of law school graduates are employed full time in the legal field within six months of graduation.   Who knows how many of those people are working in support positions?  The statistics show that job prospects for new graduates are terrible.  


Statistics like this make one thing quite clear.  It is an absurd gamble to leave law school with significant debt.  Yet the average graduate has about $125,000 in student loan debt.  In Vermont, that is completely absurd.  There are almost no entry level jobs that justify this amount of debt.  It is an absurd amount of debt even in a better economy.

 

The huge advantage of Drexel's two year program is that it will reduce the overall cost of a law school education.  If law schools aren't willing to reduce their tuition rates, this is the next best thing.  I would still think twice before enrolling, but this is a step in the right direction.

 

I graduated law school in a near-recession economy.  I scratched and clawed, and got my foot in the door.  Once that happened, my work spoke for itself and I was able to meet my career goals.  The environment seems much worse now.  Sadly, I don't know if I would encourage my children to attend law school.  It's that bad out there.