Protecting Your Rights Under a Temporary Order

In Vermont, it is common for the Family Court to issue temporary orders in a divorce case.  These orders are issued early in the process to establish ground rules for the parties while the process plays itself out.  Most often, temporary orders are used for issues involving parental rights, child support, and spousal support.


When crafting a final order in a divorce case, it's imperative that temporary orders are not forgotten.  The Vermont Supreme Court drove home this point in a recent decision.  In Joseph v. Joseph, the court ruled that a final decree extinguishes the right to enforce an arrearage arising under a temporary order that has not been included in the final order or otherwise reduced to judgment.  


In layman's terms, here is what they said: If you are owed money under a temporary order, you better be sure to have that addressed in your final order.  If you fail to do so, and don't otherwise have a judgment for what you are still owed, you lose your ability to collect on the arrearage.  It is important, therefore, to make sure your attorney knows if there are any arrearages under a temporary order before a final order is put in place.  


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. 


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.


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.


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.