Lowering the Bar

Great Response to a "Prank" Cease-and-Desist Letter

2013-06-19T11:24:44-07:00

Buzzfeed's question, "Is This The Best Response To A Cease And Desist Letter Ever?," prompted some debate this morning, although it is one of those debates that is not really necessary (which is why we had it on Twitter) because everyone except maybe the recipient agrees it's very good.

The pitch that resulted in this line drive was a letter from the township of West Orange, New Jersey, to Jake Freivald, the owner of westorange.info. (That website is currently down due to increased traffic, not at all surprisingly.) West Orange's letter seems to have taken the position that westorange.info was likely to confuse people into believing Freivald's site was affilated with the township and/or its website. But Freivald's lawyer, Stephen Kaplitt, suggested that nobody was likely to confuse his client's "rudimentary website" (cost $3.17) with the "virtual masterpiece" that is westorange.org (cost said to be upwards of $35,000).

But that was only when he got to the part of his response that he said he would have sent, "had you intended for your letter to be taken seriously" in the first place. "Obviously [the letter] was sent in jest," Kaplitt wrote, "and the world can certainly use more legal satire." (Amen to that.) But just in case the writer was serious, Kaplitt also noted that geographic domain names have been repeatedly been found not to be protected marks, "especially when claimed by government or municipal authorities," as was the case here.

He had additional legal arguments as well, which he outlined before concluding, "But of course, only a humorless suit would have sent such a response to your literary gag gift." Buzzfeed has the whole letter, which is definitely worth reading. (When asking for authority supporting the town's demand, Kaplitt also mentions "those voluminous Township playground rules no one pays attention to," which I am about to go look up for Odd Law Project purposes. Bonus points for that.)

As to whether it is the "best response ever," Eric Turkewitz pointed out, I think correctly [but Scott Greenfield gets Twitter credit for being first], that no response letter is ever likely to equal the one sent in 1974 by Jim Bailey, then the general counsel for the Cleveland Browns. (So good it needed to be confirmed, which I talked about here.) Bailey was responding to an angry letter from a lawyer and season-ticket holder who noted that cases of paper-airplane sailing at games had increased sharply, posing "the risk of serious eye injury and perhaps an ear injury as a result of such airplanes." The letter demanded steps be taken to terminate this activity, failing which the writer would "hold you responsible for any injury sustained by any person in my party...." Response:

There is no shame in coming in second to that.

On the other hand, it just struck me that Bailey wasn't responding to a cease-and-desist letter, or at least not the same kind sent by West Orange. So if desired, that debate can continue.

The Photo-Booth Idea Was Bad Enough to Begin With

2013-06-17T11:02:48-07:00

... even before you posed with the stolen item.

The Capital Gazette reported on Saturday that police were searching for the pictured group of young people in connection with a case of alleged credit-card fraud. A woman reported she had lost her credit card while shopping at a mall in Crofton, Maryland. An investigation revealed that one day prior to the report, someone had used the credit card to buy movie tickets at a nearby theater. That transaction was captured on surveillance video, but that evidence turns out to have been pretty much unnecessary. The card was also used to take these pictures inside a photo booth in the theater lobby, and I guess doing this is one level smarter than posting similar photos on Facebook but that's still not even approaching smart.

It drops back down at least one level when you consider that in the second picture, one of them is holding what is presumably the same credit card (a VISA) up in front of the camera.

To be fair, it looks like he wasn't holding the card up as a trophy or something stupid like that, but rather that it was there as a side effect of him trying to jam his thumb into his nose to make the picture "funny." He just happened to use the same hand that was holding the card. So let's give him a little credit for not doing it deliberately.

A tiny, tiny amount of credit.

One fact not in the report is how police got the strip of photos. If they left it in the dispenser slot, that would also have been dumb. But if police were able to obtain it from the booth's hard drive—I'm assuming that even photo booths like this are digital now—that would be less dumb but also another reason not to do anything embarrassing in a photo booth. I'm sure they'd tell you (like the TSA) that those files are never saved, but you know how that goes.

The report provides a phone number that police are asking people to call if they have any information about the incident, though I'd be a little surprised if they haven't turned themselves in by now.

Michael Jackson's Ghost Testifies His Death Was an Accident

2013-06-16T14:04:29-07:00

It testified over objection, of course, but the objection was apparently overruled.

As you may recall, Jackson died in 2009 from an overdose of the anesthetic propofol, given to him by Dr. Conrad Murray. Murray was convicted of involuntary manslaughter in 2011. Jackson's family then filed a civil suit against AEG Live, blaming it for contributing to his death through negligence in hiring the doctor and in failing to take steps to help Jackson although it allegedly knew he was not well. (Did anyone not know he was not well?) That trial has been going on in L.A. Superior Court for four weeks now, and it is a pretty good indication of how closely I have been following the proceedings that I only learned a trial was going on today, after somebody told me a ghost had testified.

So now I'm paying attention.

As the reader who sent me this item noted, the report he'd seen was in the Daily Mail, and that report quoted The Sun, so this was already triple or quadruple hearsay with at least two not-always-reliable sources in the chain. Googling the story turned up other reports—in the Weekly World News, New York Post, and so forth—so this was not looking very promising. But after some inquiries I am glad to say a source has confirmed the basic details.

Nobody is saying MJ actually showed up, so I admit saying his ghost "testified" is a bit of a stretch. But a witness did quote the ghost, and that's good enough for me.

The witness was Randy Phillips, AEG Live's CEO, who was on the stand for several days during the past two weeks. As the Los Angeles Times reported last Monday, Phillips had been "sparring" with the family's attorney, Brian Panish, and apparently was a somewhat difficult witness. The Times reported that the judge excused the jury at one point and told Phillips that he needed to try harder to "answer the questions being asked without comments" or argument, or that he might be on the stand for another week. (The Times also mentioned that Phillips "attended two years of law school," and while it could be considered a compliment that he bailed out early, the Times seemed to be insinuating that it explained why he was so argumentative.)

My understanding is that the ghost manifested during Phillips' testimony while he was trying to explain a 2009 email he sent stating (according to the Daily Mail), "I think I know what MJ died of and this would exonerate Conrad [Murray]." Previously, Phillips had said he didn't recall what that was about, but on the stand he seems to have remembered. Or came up with something, at least. He testified (according to the Sun) that "Brenda [Richie, ex-wife of Lionel] called me to tell me that she was in communications with Michael, either through a medium or directly. She said Michael told her it wasn't Dr. Murray's fault—that he had accidentally killed himself."

In other words, Phillips testified that in 2009 he had believed Murray was innocent because Lionel Richie's ex-wife told him that a medium told her that the ghost of Michael Jackson had told her that the death was an accident.

This is one case where I might have advised sticking with "I don't recall."

Panish objected that the testimony was triple hearsay, which was probably being charitable. For non-lawyers, "hearsay" is an out-of-court statement offered to prove that the stated facts are true. That is, "Michael Jackson's ghost told me it was an accident" would be inadmissible for purposes of proving the death was an accident (assuming a ghost would otherwise be competent to testify about that). "A medium told me that Michael Jackson's ghost told her it was an accident" would be double hearsay, and so on. Phillips said he wasn't sure if a medium had been involved, and if not then his testimony would in fact have been triple hearsay (ghost to Brenda to Phillips). Otherwise, quadruple.

Even single hearsay is inadmissible, which makes it a bit surprising that all the reports appear to agree that the judge overruled the objection. But that is possible and maybe even correct. There are actually lots of exceptions to the hearsay rule, in situations where there is some other reason to think the testimony would generally be credible. "I heard it from a ghost" is not one of them, but remember that it's only "hearsay" in the first place if offered to prove the stated facts are actually true. So AEG's attorney may have argued, and the judge may have reasoned, that the precise issue here was not whether the death was an accident (a question I think was settled by the criminal case anyway), but rather what the hell Phillips might have been thinking when he wrote the email. Viewed that way, the testimony is probably admissible despite the hearsay objection. It may not be credible, but that's a different issue.

The trial is expected to last another four weeks, according to one report. I doubt they will hear from any more ghosts, but I would expect to hear about this one in closing arguments.

Happy Birthday to You, Happy Birthday to You, Here's a Copyright Lawsuit, Happy Birthday to You

2013-06-15T13:30:00-07:00

I don't know that I'd call this "a lawsuit for the ages," like the New York Times does. But that's mainly because around here that title is reserved for the four-year struggle over a $65 million legal claim that the plaintiff called a "public interest lawsuit by a private attorney general" but the court called "a personal vendetta against a dry cleaners over a pair of pants." So the bar is pretty high.

But a copyright lawsuit claiming that "Happy Birthday to You," arguably the most recognized and most-often-performed song in the English language and possibly in any language, is actually in the public domain could definitely be in the same ballpark as the Pants Suit.

You deadbeats who have singing this thing every year without paying a dime are mostly in the clear, because non-commercial uses of "Happy Birthday" would be considered "fair use." So you won't need to argue, as most people probably would, that you had no idea "Happy Birthday" was copyrighted and that can't possibly be right, can it? The fact is that millions of dollars in "Happy Birthday" royalties have been paid over the years, pursuant to a copyright currently claimed by Warner/Chappell, a subsidiary of Warner Music Group. The royalty apparently varies, but the NYT says that the use of the song in the movie "Hoop Dreams" cost the filmmaker $5,000.

The complaint (linked in this Billboard article) was filed by another filmmaker who is making a documentary about "Happy Birthday"—tentatively titled "Happy Birthday"—and argues that in fact the song has been in the public domain for a long time. The suit seeks a declaration saying so, as well as an order that Warner/Chappell refund all the fees it has collected on the thing over the past four years (maybe $8-10 million). It's a class action, so if you have paid royalties for "Happy Birthday," this might be good news for you.

The history behind the song, and the relevant legal arguments, are set forth exhaustively in this excellent 2010 article by Robert Brauneis (PDF) a law professor at George Washington University. It's a really interesting read even—maybe especially—if you are only interested in the history. It explains that the song was written for kindergarten students by two sisters in the late 19th century. Originally it was called "Good Morning to All," and was first published in 1893. The words were different, obviously, but the melody was the same (each can get separate copyright treatment). At some point, the lyrics mutated to the familiar "happy birthday" ones, and Brauneis says the old melody and the new words then formed a new work for copyright purposes. Who owns that, though, if anyone, is not clear. To cut to the chase, Brauneis concludes in his article that the song has probably been in the public domain since 1963 at the latest.

This could be a problem for Warner/Chappell, who has been collecting an estimated $5,000 per day in royalties on the song for years. It charged the plaintiff $1,500 for using "Happy Birthday" in the new movie, which is the basis for standing in the new lawsuit. Plaintiff is seeking, first, a declaration under federal law that Warner/Chappell does not own the copyright, and also restitution of any fees paid, under both federal and state law. The state law, not at all surprisingly, is California's Unfair Competition Law.

Why is a case filed in New York alleging violation of a California law? Partly because Warner/Chappell is located in California, but also because, as I've mentioned before, the UCL is an extremely broad "consumer protection" statute (this is one of my practice areas), and that breadth is sometimes fine but also encourages utterly stupid lawsuits like the hopefully now infamous "Crunch Berries" case. Here, this case is not stupid and the plaintiff may have a perfectly good copyright argument, but I'm having trouble seeing how the defendant has committed an "unfair, unlawful, or deceptive practice" (what the UCL prohibits) as long as it had an arguable claim to the copyright. Just because you assert a legal claim that a court later disagrees with doesn't mean you acted "deceptively." A bigger problem for the plaintiff, though, is that it has to show it relied on a deceptive practice when it paid the fee. If it paid the fee knowing there was a significant dispute over the copyright—possibly even planning to challenge the copyright—then the state claim should be dismissed.

In any event, the federal copyright claim is the real action here. If the plaintiff wins, everybody can sing "Happy Birthday" for free. If not, somebody will be collecting on it until at least 2030.

Court to DOJ: About That Meta-Data You Said You Didn't Have ... [Update II]

2013-06-13T11:49:53-07:00

The Southern District of Florida Blog reports that the Government has some 'splaining to do in a case pending there, given the recent NSA data-trawling revelations.

The defendants are charged with a string of armored-car robberies. As part of its investigation, the Government obtained (and later produced) phone records for the period beginning September 1, 2010. One of the defendants also wants call records for July 2010, when one of the robberies took place, because he says that will support his claim that he was somewhere else at the time. Previously, the Government said it tried but failed to get the records from the service provider, and therefore "advised Defendant that it did not have the records." Actually, Government (this recent order states), Defendant thinks you probably do:

Defendant Brown urges that the records are important to his defense because cell-site records could be used to show that Brown was not in the vicinity of the attempted robbery that allegedly occurred in July 2010. And, relying on a June 5, 2013, Guardian newspaper article that published a FISA Court order related to cellular telephone data collected by Verizon, Defendant Brown now suggests that the Government likely actually does possess the meta-data relating to telephone calls made in July 2010 from the two numbers attributed to Defendant Brown.

"Meta-data," as you probably know by now if you didn't already, is data about other data but not actually part of it (my definition). For a phone call, the main "data" would be the conversation, and the "meta-data" would be things like when you made the call, what the closest cell tower was when you made it, the number you called, and so forth. That's what Brown wants, and what the Government told him it doesn't have and couldn't get. Only, it does have his meta-data, because it has everybody's meta-data:

As relevant here [the court went on], the [FISA] Order appears to authorize, under 50 U.S.C. § 1861, the production of “all call detail records or “telephony metadata” created by Verizon for communications … wholly within the United States, including local telephone calls.” The Order defines “telephony metadata” as “comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile Subscriber Identity (MSI) number, International Mobile station Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call.”

I'm guessing Brown was a Verizon customer, but it probably doesn't matter.

Under 50 U.S.C. § 1806, the target of such surveillance can ask for the information obtained. If the Government claims disclosure would harm national security—and you get no prizes for correctly guessing whether it will do so here—then the court reviews the matter in private to decide whether the surveillance was lawful (otherwise the review is in open court). Accordingly, the court ordered the Government to make the national-security claim if any immediately (yesterday was the deadline), because the trial is apparently underway.

As the court noted, the Government could avoid this particular unpleasantness by producing the requested material and stipulating that it would not use it against the defendant. I shall now go see how it responded (if it did) and update accordingly.

Update: The docket available online doesn't show any response by the Government at all. There is a docket entry dated June 11, the day after the order was issued, that is described only as "restricted/sealed until further notice." That could be it, or it could be something else you're not allowed to know about.

Update II: The Sun-Sentinel reports that the Government asked for more time to respond (to be fair, they only had two days), and the judge agreed to allow "an extra week or two." "There are security procedures that must be followed," said an AUSA, and since this is a citizen asking for his own cell phone records, presumably the "security" problem lies in explaining just how the Government happens to have them when nobody else does. Or, more likely, in figuring out how not to explain that.