In the case of US v. Stevens which was decided this week by the Supreme Court, a federal statute banning the making or sale of animal cruelty videos was declared unconstitutional. The statute at issue was intended to criminalize “crush videos” (which I won’t describe here but depict horrendous animal cruelty). While there are some exceptions to the right of free speech – most notably the one for obscenity – the Court indicated that animal cruelty should not be an additional exception. In other words, the statute attempted to criminalize speech which is protected under the First Amendment.

 Despite the free speech analysis in the decision, I think the bigger issue is government encroachment on individual’s rights through the passage of federal criminal laws. Under the Bill of Rights, the federal government does not have police power; it was reserved to the states. Thus, the federal government does not have Constitutional authority to make and enforce criminal laws against its own citizens (except in a few very limited circumstances – such as regarding the military). While the result is right in US v. Stevens; it is for 10th Amendment reasons as opposed to 1st Amendment reasons.  I do believe that videos depicting animal cruelty are obscene and the making and distribution thereof should be criminalized, but this should be done at the state level.

This 10th Amendment issue is going to come up more and more frequently now that people are starting to question the extent of federal legislation in this country. I was hoping this opinion would have given us a clue as to how this Court will rule when a 10th Amendment argument is made to it. I imagine it will come up with respect to the federal marijuana laws and the Health Care Reform Bill. I for one will be looking at the wording of future Supreme Court decisions to see if I can determine how they will resolve this issue.

If any of you have ever watched Damages on TV you probably wonder where they come up with their plot lines. (If you haven’t seen it, you should – but watch it from the beginning.)  I often tell people they wouldn’t believe half of the insane stuff that goes on in lawsuits. Anyway, in a suit against Chevron concerning their alleged polluting of an Ecuadorean rain forest, it was discovered that one of the expert witnesses had filed fraudulent reports with the court. The expert was hired by the plaintiffs to oversee water and soil tests, but had to return to the US before the reports were prepared. In a multi-BILLION dollar suit, the expert witness essentially signed a blank report that he allegedly believed would be filled in with the actual results. Imagine his surprise when although he recalled finding no significant contamination, the reports with his signature on them indicated that the sites were significantly impacted and required remediation. The “mistake” was discovered when the expert’s name was misspelled on his own correspondence with the court. This apparently alerted Chevron’s attorneys that something was not quite right with this expert’s reports. Can you believe that some guy was actually paid to oversee reports in a case of this magnitude and doesn’t even bother to make sure he signs the actual results?  Now that I think of it, this sounds more like an episode of the Simpsons.

I am very interested in following the Arkansas case of a 16-year-old boy who filed a complaint with the police resulting in a misdemeanor charge of harassment against his mother for making changes on his Facebook account and then changing his password so he could no longer access it. A similar issue has come up a few times in other contexts around here. A friend of mine has a daughter who goes on to his Facebook account and writes flattering comments about herself as though her Dad had posted them. It is very cute – and very obvious. Another friend got angry with her son who had gone on to her Facebook account and deleted all of the pictures she had posted of him because he didn’t like the pictures. His Mom reposted them and changed her password. I felt uncomfortable with this. Should children have the right to prevent photographs of them from being accessible on the internet? In the original case, I should mention that the Arkansas mother does not have custody of her son and removed content from his account because she didn’t like it. The fact that she essentially locked him out of the account by changing his password indicates that she is not very adept at communication. Rather than speaking with him about the appropriateness of the posts, she simply deleted them. Would you go into your teenager’s Facebook account and modify it? Would you change the password to keep him out? Under what circumstances? If you are a teen, would you go into your parent’s Facebook account and make changes or delete photos or references to you that you did not like? From a legal perspective there is something called criminal impersonation (which requirements vary from state to state), but essentially impersonating someone can be a crime under certain circumstances. If someone were to go onto your Facebook account and make changes, how would you respond?

You’ve probably seen the barrage of commercials for the BRCA (pronounced “brack”) test for women. It tests for the BRCA gene which indicates that a woman is 3 to 7 times more likely than the rest of the population to develop breast cancer. Last week a New York federal court invalidated the patent held by Myriad Genetics for this BRCA gene. Essentially, by establishing ownership of the gene through the US Patent and Trademark Office, Myriad has successfully prevented all others from testing for this mutation in the human body since 1996. The fact that the patents were granted for genes and gene mutations in the first place is very questionable. The ACLU sued Myriad Genetics on behalf of several patients and research scientists because the company’s ownership of two gene mutations resulted in women being unable to obtain a second opinion because only Myriad could perform the test. It also prevented scientists from further studying the gene. This decision puts other patents on genes in jeopardy (the ACLU estimates that some 2000 patents are currently held by private corporations on human genes). Although it is likely that this decision will be appealed, as Myriad is making $3,500 – $4,000 a pop on the test, in my opinion equity requires that genes and gene mutations be excluded from protection so that women may receive proper testing before undergoing radical preventative surgery. Corporations have no business owning any portions of the human body for any reason.

New technology has made its way into campaign ads. A group that wants to “counter-balance” Meg Whitmans’ financial advantage in the California Governor race has come out with an advertisement using a computer-generated avatar for Meg named “Meg-a-tar.” Meg is the former CEO of Ebay. Although the avatar is not flattering and speaks poorly about Meg Whitman, I’m not sure if it will hurt her campaign or bring about more interest in her campaign among younger voters.  On the other hand, this creation may breach Meg’s right of publicity.  Every person has the right to control the use of his or her own likeness, especially for commercial purposes. These cases usually arise in product endorsement situations, but one could make the argument that only Meg Whitman has the right to create and publish a Meg-a-tar to endorse her own candidacy and that it is actually a breach of this right to use a Meg-a-tar without her consent. I don’t think I would want a Kim-a-tar out there espousing rhetoric that I did not approve. Let me know if you’ve seen the clip, and if so, how do you think Meg should respond?

Disney acquired Marvel Entertainment last year for quite a chunk of change. One of the most important assets of Marvel is its superhero collection, many of which were developed by Jack Kirby who has since passed away. The heirs of Kirby sent out a notice of copyright termination under Section 304(c) of the Copyright Act to both Marvel and Disney to have the copyrights in their father’s work revert to them. The Copyright Act permits the heirs to terminate the copyrights effective 56 years after the establishment of the copyright – which apparently occurred between 1958 and 1963 when the comics were originally published. On the west coast, Kirby’s children have asked the court for a declaratory judgment acknowledging the validity of the termination notices, spelling out the profit sharing going forward on any co-owned works, the return of their father’s original artwork, and to give their father credit for the movies based on his creations (The Incredible Hulk and X-Men Origins) in the case of Kirby v. Marvel, et. al. SACV10-00289 CJC (C.D. Cal. 2010). On the east coast, in the case of Marvel v. Kirby, 2010-cv-141, (S.D. NY 2010), Marvel is suing the heirs to have the notices declared invalid. Although Marvel claims that its relationship with Jack Kirby was a “work-for-hire,” the heirs allege that Kirby worked out of his home without a written agreement. If this is true, the relationship was most definitely not a work for hire situation. A work-for-hire requires either an actual employment relationship or a written agreement transferring the ownership in works created by an independent contractor. Since Marvel could have easily disposed of both cases by presenting a copy of such a written agreement or proof of employment, one can assume that they are unable to document their position. Since I can’t imagine that Disney was unaware of the ability of Kirby’s heirs to terminate the copyright, my guess is that as a part of the $4.3 billion dollar transaction, Marvel agreed to indemnify Disney for these claims by Kirby’s heirs. (To indemnify means that Marvel will defend Disney at Marvel’s cost and be responsible for any damage award against Disney). This is why Marvel filed the suit instead of Disney. Regardless, the Kirby children have requested a jury trial. When the jury hears how much Marvel made off of Kirby’s work, someone will need to get their checkbook out. Something tells me it won’t be Disney.

Here is one for my under 30 years of age readers. I am looking for comments (and enlightenment). I will give my view in a later post. According to an article in the New York Times, a 14 year old girl in New Jersey was arrested for child pornography because she posted a sexually explicit picture of herself on MySpace. In response to the number of criminal charges being brought against minors for “sexting,” several states have passed legislation removing this conduct from felony status. A federal court of appeals recently prevented a Pennsylvania prosecutor from bringing child pornography charges against some 12 and 13 year old girls who took some risqué photos at a slumber party. It seems that teenagers like to take and send photos of themselves in various states of undress. The problem is possessing and distributing these photos is considered child pornography in many states – a felony, with jail time, and the obligation to register as a sex offender. Clearly, the lawmakers did not anticipate this new trend. It also appears that there is a wide range of “sexting” activities from sexually suggestive to explicit.

Essentially, there are three situations which need to be addressed when those under 18 engage in the following activities: (1) posting or sending a sexually explicit photo of yourself to someone under the age of 18, (2) posting or sending a photo of yourself and another person which is sexually explicit, and (3) republishing a sexually explicit photo that someone else sent you privately. Do any of these activities warrant a felony charge? Do any warrant a misdemeanor charge? Should any be addressed in the juvenile justice system? Should any be decriminalized? How should these situations be handled from a legal perspective?

In Advance Magazine Publishers v. Does 1-5, No. 09-10257 (S.D.N.Y. Dec. 22, 2009) Conde Nast is seeking to identify the people who hacked into their computer system and republished pages from the December 2009 issue of GQ magazine on a blog hosted by Google’s Blogger Service. The complaint alleged a violation of the Computer Fraud and Abuse Act (CFAA) for the hacking, and copyright violation for the republishing without permission of copyrighted materials belonging to Conde Nast. The court agreed to issue a subpoena to discover the identity of the hackers and republishers because (1) Conde Nast had alleged sufficient facts to bring an action under both the CFAA and the Copyright Act, (2) the identity of the hackers could be overwritten if not discovered soon, and (3) Conde Nast has no other way of obtaining this information. If you were the Judge, what other conditions would you add before granting a subpoena to identify computer hackers? Would your answer be any different if this was just copyright infringement?

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.

Does telling a suspect that “You have the right to talk to a lawyer before answering any of our questions” and “You have the right to use any of these rights at any time you want during this interview” mean the same thing as “You have the right to an attorney during questioning?”

In the case of Florida v. Powell decided February 23, 2010, the U.S. Supreme Court reversed the Florida Supreme Court’s holding that the statements made by the police were misleading because they seemed to imply that the suspect only had a right to an attorney prior to the interrogation.  The case of Miranda v. Arizona (1966) requires that a suspect must be clearly warned prior to any questioning that he has the right to consult with a lawyer and to have the lawyer present with him during interrogation.

The Supreme Court stated that the exact warning given did satisfy the requirements in Miranda. The Court declined to prescribe any exact phraseology. What are your thoughts? Do you believe the statement “You have the right to use any of the rights at any time you want during this interview” is clear enough to inform a suspect that he or she can have an attorney present during an interrogation? Why or why not?