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Archive for the ‘Supreme Court’ Category

It is South by Southwest® here in Austin this week. While most of the students are away, the town is full of music, films and interactive events. In searching for something with a legal angle that I could write about, I came across a potential legal dispute involving the movie “MacGruber” of SNL fame, which premieres tonight at the Paramount. The dispute stems from a cease and desist letter sent by the attorneys of the creator of the original MacGyver TV series. Apparently, MacGyver is also being made into a movie. The letter did not stop the premier, but raises the issue of copyright infringement.

Essentially, before a suit for infringement can be brought in federal court, the work must be registered at the Copyright Office. The courts will examine whether the alleged infringing work is “substantially similar” to the original work, and if the look and feel, among other things, of the original work was improperly copied. Although it is unlikely that anyone would think that MacGruber was created independently, it was clearly based on the MacGyver character, there is an exception to infringement called “fair use.” One type of fair use is parody. A parody is the copying of a work in a satirical and humorous manner. I don’t think anyone will claim that MacGruber is anything but a copying of MacGyver in a satirical and humorous manner, but not all parodies are automatically fair use.

The most prominent case involving this issue is Campbell v. Acuff-Rose Music which was decided by the Supreme Court in 1994. Essentially, 2LiveCrew recorded a parody of Roy Orbison’s “Oh, Pretty Woman,” and like the creator of MacGyver, the owner of the Pretty Woman copyright felt that the parody was an infringement. Although the lower court held that the commercial nature of the 2Live Crew version of the song automatically excluded it from fair use, the Supreme Court ruled that because the work was so transformative (different from the original), the work would not impact the commercial value of the original work as they operated in completely different markets (one of the factors in fair use).

What does this mean for MacGruber? I would predict that a court would find MacGruber to be transformative parody and serving a different market than MacGyver and thus a fair use. I wish them a successful premiere.

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Recently the Supreme Court issued its opinion in Maryland v. Shatzer which created new law. Although the law requires the police to inform those being questioned that they have the right to have an attorney present during questioning, the issue in this case was whether an arrestee’s invocation of the right expires when there is a break in custody. Previous law indicates that police cannot re-question a suspect after they have invoked their right, even after they have spoken with their attorney, unless the suspect approaches them. In the Shatzer case, the suspect invoked his Miranda rights in 2003 after a police officer approached him in jail on another offense. In 2006, a different officer approached him while still in jail and this time he waived his rights.

The lower court in this case had held that because of the “break in custody” between 2003 and 2006, the police were able to re-question the suspect. The Maryland Court of Appeals reversed indicating that because the suspect remained in jail, there was no break in custody. The Supreme Court felt that the previous rule applied to “investigative custody” not any other type of custody. What is interesting about this case is that the Court adopted a 14-day rule which means that the police can now wait 14 days before attempting to re-question a witness who is no longer in custody. This is quite different from the previous rule indicating that once invoked, Miranda rights remain intact until the suspect approaches the police.

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In a 5-4 decision the United States Supreme Court has made bribing political candidates legal.  Locally, when a developer is denied approval to build another subdivision, now corporate headquarters can turn around and fund the election of someone who will vote for it.  Nationally, the awarding of federal contracts to campaign supporters will no longer go on under the table with risks of ethics violations and possible criminal charges, now it can be done out in the open.    

 The case at issue is Citizens United v. the Federal Election Commission, No. 08-205.  This case involves a negative movie about Hilary Clinton that was released during the primaries.  Citizens United, who produced the film, lost a case against the FEC which had prevented them from showing the film on a cable TV channel and from advertising the movie on TV. The lower court found that the McCain-Feingold campaign finance laws did apply to the movie.  Although the case went to the Supreme Court on these narrow grounds, mainly whether the campaign finance laws were meant to apply to documentary-style movies, the Court took the unusual step of holding a second set of arguments to address whether two previous campaign finance law cases should be overruled.  Although this case is sad for many reasons, I am especially sad that former-Justice Sandra Day O’Connor was not able to guide the court to a more palatable result.   Essentially, the majority threw out campaign finance laws and decided that the federal government can no longer ban corporations from spending money on political campaigns.

 Justice Kennedy stated in the majority opinion: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in free speech.”  Hold on, Emily Litella, since when is a corporation an “association of citizens.”  The last time I checked, they were state-chartered entities organized for the purpose of operating a business, making a profit, and sheltering the organizers of the business from personal liability.  I don’t think anyone would mistake one for an “associations of citizens.”  This decision is a travesty on a number of levels, but as I discussed with my classes today, corporations are not humans.  Thomas Jefferson stated: “A bill of rights is what the people are entitled to against every government on earth, .  .  .”  These rights are human rights, essential to our type of government.  They should not be cheapened by their extension to corporations.  (I do understand that corporations have been given “rights” over the years by the Supreme Court, starting with Santa Clara County v. Southern Pacific Railroad Company.  I just don’t agree with that line of decisions.  And while I agree with Stevens’s Dissent in Citizens, I don’t agree with his adherence to the “corporations are people too” position.) 

This case is not just about campaign finance laws; it is about the power that corporations have amassed over the years.  Do you really want Xe Services, LLC, f/k/a Blackwater, choosing your next President?   When my students ask me, why doesn’t anybody do anything about this stuff?  I tell them, we are like frogs in a pot of water that has slowly been turned to boiling.  The changes happen so gradually, that we don’t know we are cooked until it is too late.  Let’s notice this change.  Let’s do something about it.

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 The U.S. Supreme Court recently heard arguments in the case of Bilski v. Kappos No. 08-964 (Supreme Court 2009). This decision could help determine whether software can be patented. The question in the lower court was whether a process can be patented. The lower court expanded its inquiry to whether or not software can be patented. Although this Federal Court did not rule that software cannot be patented, it apparently overruled the State Street decision. In State Street Bank & Trust v. Signature Financial Group, 149 F.3d 1368 (1998), the court determined that software programs that “transform data” are patentable subject matter even when there is no physical transformation of an article. The State Street court held that software or other processes that yield a “useful, concrete and tangible result” should be considered patentable and this rule has been followed, more or less, by the Patent Office ever since.

In Bilski the lower court indicated that the “useful, concrete and tangible result” inquiry should no longer be used to determine whether a process can be patented. Because this was the inquiry used to grant many software patents in the past, the Federal Court’s decision has called into question the validity of these existing software patents. The new test stated for determining that a process is patentable is if “(1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.”  The lower court ruling did not explain whether a software process operating on a computer is considered to be tied to a “particular machine or apparatus.”  If a computer is not deemed to be a particular machine, then many existing software process patent claims could be in jeopardy.  

The Supreme Court also took up the question of whether the lower court’s new “machine-or-transformation” test for patent eligibility, which eliminates patent protection for many business methods, including software, contradicts the clear Congressional intent that patents protect “method[s] of doing or conducting business” in 35 U.S.C. § 273. During the arguments some of the Justices seemed to imply that siding with Bilski could open the door too wide for further patent applications, while other Justices felt the new test was too limiting. Regardless of how the decision comes out, at some point either the courts or the legislature need to clear up the confusion surrounding the ability to patent business process and computer software.

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I have to admit, I wasn’t really following this case until I read a very articulate editorial by Drew Brees, a Quarterback for the New Orleans Saints and former Austinite, in the Austin American Statesman (1-11-10 – page A7). Apparently the Supreme Court will be hearing American Needle v. NFL, Supreme Court Docket No. 08-661; an antitrust case brought by an Illinois manufacturer of hats who lost its antitrust claim in the Federal Court of Appeals in Illinois (7th Circuit). The antitrust claim arose from the NFL’s granting an exclusive license to Reebok to manufacture NFL fan products such as hats, jackets and the like. As the Illinois company, American Needle, pointed out, the effective monopoly has in fact increased prices for such fan gear since Reebok was awarded the contract in 2001, and has prevented smaller companies from getting into the market. The Supreme Court will decide if the NFL should be considered one entity (in which case there is no monopoly because you can’t have a monopoly with yourself) or 32 separate entities (in which case they could be found to be conspiring to restrain trade in the fan product area). What Mr. Brees pointed out was that this ruling could also affect the NFL’s ability to monopolize other areas. Apparently the NFL made the unusual request to the Supreme Court that it rule the NFL is one entity for purposes other than just fan gear. The result which Mr. Brees fears is that such a ruling could effectively overrule the 1993 decision in McNeil v. NFL, 790 F. Supp. 871, 896-97 (D.Minn. 1992), a previous antitrust lawsuit against the NFL, which paved the way for free agency among football players. Depending on how far the Supreme Court goes, the decision in the American Needle case could have ramifications for free agency, ticket prices, and, of course, fan gear, in other sports as well.

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On December 11, 2009, a Motion to Reargue Appeal was filed in the New York Court of Appeals (highest court in New York – like a Supreme Court in other states) in the case of Goldstein v. New York State Urban Development Corporation, No. 178 (November 24, 2009) which decision had upheld the condemnation of a number of residential and commercial properties in order to make way for a private corporation to develop the land for high-end residential purposes as well as the building of a sports stadium. The condemned property was claimed to be “blighted” in a study introduced as evidence in the case (which label the residents and business owners who live there would most certainly take issue). The court indicated that the condemnation was permitted under New York law under the guise of economic development. You will remember that the 5th Amendment of the U.S. Constitution states that private property cannot be taken by the government for public use without just compensation. The 14th Amendment expands this limitation to state and local governments. Typically, this power of condemnation may only be exercised through delegation from the appropriate legislature to either an agency (for public parks, etc.) or a private corporation (for purposes of providing a public service, such as utilities or transportation).  What worries me, besides the very poorly worded opinion in Goldstein, is that the New York Court of Appeals seems to be taking the much-maligned approach in Kelo v. City of New London, 545 U.S. 469 (2005) a step further away from the Constitution.

In Kelo, a U.S. Supreme Court case, a bare majority of 5 Justices — Stevens, Kennedy, Souter, Ginsberg, and Breyer, ruled that private property could be taken for redevelopment by a private corporation when new jobs and taxes are created.  O’Connor, Rehnquist, Scalia, and Thomas dissented.  Kelo had further expanded the holdings in two previous cases, Berman v. Parker, 348 U.S. 26 (1954) and Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), which allowed condemnation to eliminate “blight.”  The pathetic end to this matter outside of the court is that in November 2009, Pfizer, the private corporation whose promises prompted the condemnation action, announced that not only would it not be developing the property, but that it would be closing the existing New London facility.  Thus, the promised jobs and taxes that were the stated reason for people being removed from their land will never come about anyway.  Talk about adding insult to injury.

In response to Kelo, in 2006, an executive order was issued limiting the federal government’s use of condemnation proceedings  …for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken.”  Although this only applied to federal proceedings, many states did change their condemnation laws to follow more closely the Executive Order than the Kelo Supreme Court ruling.  Obviously, New York was not one of them.

If this Goldstein case does make its way to the U.S. Supreme Court, what would be interesting to see is whether Souter’s replacement, Sotomayor, sides with the previous dissent making way for an effective reversal of Kelo?  I have no doubt that the framers of the “takings” clause of the Constitution did not intend it to be used to force landowners off their land for the benefit of private corporations.  What will Sotomayor do if given the chance?

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