Tagged: Law

Who the what?

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A. Suppose there's a standard recipe for people who want to make coffee: harvest and prepare (or simply buy) some coffee beans, grind them up, boil them for a few minutes, and serve.

B. Suppose a company — let's call it Feurig — declares a patterned approach toward following this recipe:

  • Provide penetrable cups of a certain size containing prepared, ground beans.
  • Provide a ring sized to hold the cup, a mounted pin to puncture the bottom of the cup, a mounted injection nozzle to penetrate the top of the cup, and a hinged apparatus to automate these penetrations when a cup is inserted into the ring and covered by depressing a handle.
  • Provide an encompassing container capable of heating water, detecting its temperature, and injecting that water into the cup at a rate suitable for cooking the bean dust.

C. Suppose Feurig then implements this patterned approach toward following the recipe by making cups and a device to accommodate and process them.

D. Suppose further that a competing company with an interest in making coffee notes Feurig's success in the marketplace and creates a different machine — made from different materials, employing a different heating, monitoring, and injection facility, and penetrating the cup differently.

E. Suppose even further that yet another company makes a cup different from Feurig's but consistent with the scale of the holding ring  on Feurig's machine and capable of being refilled with arbitrary contents (such as tea or sympathy).

What is the API?

The API is not the standard recipe (A) for making coffee: that's an obvious practice deeply embedded in the common culture and widely exercised in industry and among hobbyists.

The API is not the device that Feurig made as an implementation (C) of the patterned approach that Feurig had declared, and it is not the competing machine (D), and it is not the alternative cup (E).

The API is B: a patterned recipe-following approach capable of being realized in a concrete implementation.

F. Suppose now that a complex culture of innovation and competition has arisen around the API defined in B, and that a company — let's call it Deploracle — comes along and buys Feurig.

Deploracle argues that its newly acquired intellectual property extends not just to the physical brewing device its wholly owned subsidiary invented, but also to the abstract pattern to which that device and its successors (and many knock-off devices) conform to ensure interoperability, substitutability, and some other seven- or eight-syllable word.

That's sort of like claiming IP rights not only over the particular car you manufacture, but also over the general idea of exposing a latch to open a door, providing access to a seat, and presenting a wheel, some pedals, and a feedback display to enable intentional control of a driving machine– a contingent set of conventions that declare a patterned approach to the general recipe for driving a car. (Adherence to those declared conventions of capability and method ensure that many automobile manufacturers can make a car, that many people can learn to drive a car, and that people who learn to drive a car can thereby drive any car that conforms to the expectations implicit in that training.)

So Diabetes-Benz lays claim not only to its actual line of cars, but also to the very idea of doing a car in that way, simply because they declared that convention when implementing their car.

Does that seem right to you?


You May, On Occasion, Encounter a Particularly Cunning Ham Sandwich

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In the roughly six years I worked as a federal prosecutor, I never had a grand jury refuse my request to indict. Moreover, in that entire time — in which the feds sought between 5 and 10 thousand indictments in Los Angeles — I know of only one occasion on which a grand jury no-billed a case. (In that case, the INS — as it was still called — was trying to arrest a young man for deportation, and his mother released the family dog on the agents. The agents shot the dog. The grand jury concluded this chain of events did not merit prosecution for the mother, apparently.) My experience is not uncommon. It is notoriously easy to persuade grand juries that there is probable cause to indict. Hence the cliche referenced in the title of my post.

When a grand jury does no-bill a prosecutor, it's often dreadfully inconvenient. Usually one has to get approval from some officious higher-up (a Deputy Attorney General, in the case of the feds, I think) to re-present the case.

Wouldn't it be much more convenient to simply pretend that the grand jury had properly grasped the urgency of the government's case, and proceed as if the grand jury had returned a true bill?

Why, yes. Yes, it would. Take it away, Jefferson County, Oregon District Attorney's Office.


Thanks to the Bush Administration For Helping Me Recognize That My Conscience Needs Protection

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You know, for too long I've been content to follow my conscience within the frame of reference created by the requirements of my legal profession and the rules set by my employers, both public and private. I've always assumed that if my ethical obligations to a client or my fiduciary obligations to my employer conflict with my conscience, I ought to resign.

Now, thanks to example set by the Bush Administration, I realize that my conscience is entitled to special protection. By which I mean my job and my bar card need protection, such that I will have a right to keep them even if I violate their strictures.


Jury Duty No-Longer-Live Blogging

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Jury duty day two.  Friday my group was instructed to report this morning to a courtroom on the high-security floor, leading me to speculate it would be a gang case.  The judge in question is known to me.  He is renowned for carrying a gun on the bench and occasionally noting its presence.  I know him more particularly for some execrable rulings in cases I was connected with in one way or another, including on one occasion indulging the District Attorney's Office by issuing a search warrant for a substantial city newspaper, thus shutting it down for the day, because the DA wanted to discover whether a particular law firm had ordered a particular advertisement in that paper.   (A prosecutorial agency with more respect for the First Amendment or the rule of law would have arranged for a grand jury subpoena for the documents; the DA's decision to search and effectively shut down a newspaper for the day just to obtain advertising records even managed to draw the disapproval of competing paper the Los Angeles Times, which under other circumstances has been a reliably meek lapdog of the DA.)

Anyway, that's all based on what I knew and learned before I took an oath regarding the jury selection process.  I'll interpret that oath broadly to prevent me from liveblogging the process.  More if and when I am kicked off, which I suspect will happen today.

In Which I Wait For You To Hiss At Me

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One of the first times that I got hissed in law school was in Torts class. Moran was the case — Moran v. Faberge, Inc., that is. Moran involved a moron who, in order to make a room smell nice, poured a perfume manufactured by the defendant over an open flame. As perfumes are alcohol based, a 'splosion ensued. Result? The court of appeals said that the plaintiff was entitled to a trial on a failure attach a warning label to the perfume about not dumping it on open flames.

I took the contrary position and argued that the danger of open flames is known to everyone, and that if someone is stupid enough in the first place to dump a substance of unknown composition into an open flame, no amount of warning — no matter how prominent, explicit, or neon-trimmed — is likely to suffice; that person will find a way to visit the burn ward. Plus, I argued, only somewhat less seriously, who are we to thwart fate? Isn't society better off if people who have not grasped "fire . . . HOT!" are tapped on the shoulder and invited, by rapid combustion if necessary, not to whelp similarly clueless children or otherwise promote social irresponsibility?

This was an unpopular sentiment at Snooty Lawschool. I was hissed, and several classmates would not speak to me for several days until I said something unflattering about private ownership of land or something.

Anyway, this all comes to mind because of Overlawyered's coverage of a lawsuit by one Brian Jacobs, an architect from Queens. Jacobs is suing Amtrak because Amtrak failed to prevent Jacobs from his dreadful burns and the amputation of an arm and a leg. More specifically, Jacobs went out drinking, went to Boston's South Station at 2 in the morning, tried unsuccessfully to break into an Amtrak train, then climbed up on top of the train and was electrocuted by overhead wires. Jacobs feels that Amtrak should have protected Jacobs from himself, by guarding the trains or perhaps by identifying moron drunks and stapling them to their chairs.

It's entirely possible that the suit will fail at one stage or another. But why not have a nice clear rule preventing the suit in the first place? Yes, Amtrak might, at great expense (derived at least in part from taxpayers), make its trains so drunken-moron proof that even people inclined to climb on top of them in the middle of the night would be safe. But the cost would be staggering. The concept do not climb on top of public transportation is surely as fundamental as the "Fire HOT" rule, and a person inclined to ignore it will surely ignore a great many other basic rules about trains, such as not lying under the wheels or biting the electrical lines or sticking their heads into the exhaust and so forth. Why spend the money so inefficiently making the trains safe from the Brian Jacobs of the world? Wouldn't that money bring more public good and happiness if it were spent on health care or debt reduction or making Amtrak trains slightly less like a slow-moving Port-a-potty?

And, once again, who are we to interfere with Brian Jacobs' destiny?

She will be amazed by your gigantic throbbing sentence

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By the numbers:

25: The length, in years, of the sentence imposed on Steve Warshak, founder of Berkeley Premium Nutraceuticals, for fraud in connection with selling "male sexual enhancement products." That's federal time, boys and girls, so he's doing 85% of it.

100: The number of dollars, in millions, scammed by Warshak and his company through promising "male enhancement," delivering a worthless product, and then not giving refunds or returns.

0: Male enhancement, in inches, delivered by Warshak's products.

0: Amount that spouses and significant others assured Warshak's customers that male enhancement mattered.

[REDACTED FOR NATIONAL SECURITY REASONS]: Amount that, in fact, it mattered to the spouses and significant others.

3: Number of decent need-for-male-enhancement-in-federal-prison jokes I came up with but shall refrain from telling.

Al-Arian Case: Craziness, Mendacity and Incompetence Abound

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So, how did we get to the point where a two-term senator who ran for the 2008 Democratic nomination (as an extreme long shot, but credibly enough to get a spot in the primary debates in 2007) can stand up at a public meeting and urge people to search out and harass the children of a federal prosecutor?

Well, it helps that we're talking about Mike Gravel, who is a little crazy. He's not take-orders-from-your-dog crazy like Son of Sam or anything. Gravel would never act on orders from his dog because he's convinced that his dog is a goddamn liar.

Also, it helps that the issue that inspired the rhetoric is the long, strange case of Sami Al-Arian.


Electronic Frontier Foundation Files Amicus Brief In Lori Drew Myspace Case

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Back in May I blogged about the prosecution of Lori Drew by the U.S. Attorney's Office in Los Angeles based on Drew's cruel MySpace-based hoax that led to the tragic suicide of Megan Meier. I think that prosecution presents a dangerous expansion of federal criminal law by giving prosecutors discretion to criminalize violation of the terms of service of private sites.

The Electronic Frontier Foundation agrees and has filed an amicus brief in the case. They do a better job than I did of explaining the perils. Thanks to Talking Out of Turn for the link and for pointing out this aspect of the EFF's argument:

For example, this interpretation of the law would attach criminal penalties to anyone under the age of 18 who uses the Google search engine, because Google's terms of service specify all users must be of legal age to enter into a contract.

The counterargument will be that the government will exercise discretion and only criminalize TOS violations when the defendant has done something truly vile that society should punish (Drew's conduct is unquestionably vile). Your reaction to that argument may well depend on how you feel about government. Or it may depend on your experiences with the criminal justice system. Though I worked in the office prosecuting this case and have a great deal of respect for its line prosecutors, I don't trust the current U.S. Attorney one bit.

Privacy, Reasonable Suspicion Are So September 10th

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Via BoingBoing, I see that the Department of Homeland Security asserts the right to search your tech-fetish geegaws and tell the world that you like Michael Bolton and, God help you, this blog. DHS asserts that as part of its broad border search authority, it can take your laptop and iPod and Blackberry, send them offsite for an indefinite period of time to be analyzed by third parties of its choosing, not to mention any other agency in our government's inquisitive alphabet-soup. The government, relying on border search authority more typically applied to drug interdiction efforts, asserts that it needs no reasonable suspicion or suspicion particularized to you to do this:

Customs Deputy Commissioner Jayson P. Ahern said the efforts "do not infringe on Americans' privacy." In a statement submitted to Feingold for a June hearing on the issue, he noted that the executive branch has long had "plenary authority to conduct routine searches and seizures at the border without probable cause or a warrant" to prevent drugs and other contraband from entering the country.

The new policy is here.

Regrettably, the Ninth Circuit recently ruled that the traditional rule permitting warrantless and suspicionless border searches for things like drugs extended to permit searches of data on a laptop. I think that's questionable based on the comparative reasonable expectation of privacy in one's person and luggage, on the one hand, and in one's writing and reading history, on the other hand. (Moreover, even if it were appropriate to search for, say, image files that might be child porn, I don't think that makes it reasonable to read non-image documents.) But for now, at least, the most liberal court in the nation will back DHS's play.

The Law Would Work Great, If Not For The Lawyers and Judges and Witnesses . . .

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. . . and the jurors. My God, the jurors.

In the case I was observing today, an alternate juror began weeping quietly after being picked as an alternate for a multi-week trial. They were not tears of joy. She hadn't said anything about hardship during voir dire, so everyone was mystified. She wept more in the hall during breaks, and looked red-eyed and teary during opening arguments. (And it ain't a teary case).

None of the lawyers or judge or bailiff noticed until after she was sworn, so they couldn't just add another. The rest of the voir dire panel was excused. So now they're having a closed-door hearing about it, and they may end up with only 3 alternates for a trial that could go six weeks.

But that's small potatoes, baby. For the real havoc that an unbalanced juror can cause, check out what just happened in Riverside, California in the federal court girlfight between Barbie and the Bratz chicks. The suit concerns whether the Bratz creator came up with the noxious hos before he left the Matel mother ship. It's a bruising fight between lawyers at Skadden Arps (New York vast Biglaw powerhouse that defines establishment) and Quinn Emanuel (Los Angeles hyper-aggressive frat-style bare-knuckled litigation powerhouse, where a partner once got in trouble for sending promotional mailings to potential clients in the form of a realistic-looking replica grenade with the slogan "litigation is war," resulting in several bomb-squad calls). Skadden and Quinn have been in a fight that I'm sure is generating many millions in fees, and getting into infamous squabbles such as when Skadden tried to enter into a side deal with the nicest hotel in Riverside (which is like being the most chaste member of Paris Hilton's entourage) to exclude Quinn's lawyers. These lawyers are not just being assholes. They're being $1000 an hour assholes.

Anyway, millions have gone into getting this far in the case. Mattel (represented by Quinn) won the first round on liability and was cruising into the damages phase when everyone learned that one of the eight jurors had made racist remarks about Iranians — in reaction to the testimony of the president of MGA (which owns Bratz), an Iranian-born Jew — during deliberations. Judge Stephen Larson inquired carefully of the jurors and determined that, though the slurs were made, it was late in deliberations and did not impact the result. But now the hair is on the cake. The Bratz folks are screaming racism and there will be a significant appellate issue. As a result — because of one bigoted asshole juror — Mattel's share price dropped by 3% as the market reacted to what was previously thought to be a solid (and multi-hundred-million-dollar) win for Mattel.

Judge Larson will hear the mistrial motion next week. I knew him when he was a organized crime prosecutor; he's smart and relentless and honest, and he'll get it right.

Jurors suck.

A Reversal of Fortune

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Things don't always turn out the way you'd expect. Case in point, our friend Max Mosley, the Formula One racing organization President who was caught having German-prison-themed sex parties which he insisted were German, authoritarian, uniform-themed, but not Nazi-esque.

It sure didn't look good for Mosley. But he has the advantage of living in Great Britain, a society where any number of rights are exalted above the right to freedom of expression and freedom of the press. So this week a British court fined the News of the World, saying that it had no right to expose Mosley's activities because they were not serious crimes.

This is largely the fault of Belgians. Those censorious fuckers.

In his ruling the judge acknowledged the growing influence in British national life of the European Court of Human Rights, which gives people's privacy precedence over the right of the media to investigate them.

The judge also ruled that while Mosley's fantasy was Teutonic, prison-themed, uniform-themed, and sado-masochistic, there was no evidence that it was intended to convey Nazism. It's not clear whether the judge considered the fact that Mosley's dear old dad was a friend of Hitler and leader of England's pre-WWII fascists. I learned it from you, okay? I learned it from you!

This result is disappointing to those who viewed England as having a rich common-law tradition of freedom of expression and an autonomous legal system, and not particularly surprising to anyone who has been paying attention.

Ninth Circuit Recognizes Affirmative Defense of OMGWFT911!!1one!!

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EDITED MARCH 28, 2012 TO ADD: if someone would shoot me an email at Ken at Popehat telling me why this post is getting lots of hits from a local host today, I'd appreciate it.

The Crime and Federalism blog introduced me to Fogel v. Collins, a Ninth Circuit decision released last month. In their opinion, judges Brunetti, Fletcher, and Clifton explained what led Mr. Fogel to sue Officer Collins and the Grass Valley Police Department.

It seems that Mr. Fogel had a rockin' van.