As copyright becomes more and more of a hot-button issue on the Web, inevitably more and more authors are releasing books on the topic.

The notable books (and controversial) books on the topic released in the past few years have included Digital Barbarism: A Writer’s Manifesto by Mark Helprin, The Cult of the Amateur: How blogs, MySpace, YouTube, and the rest of today’s user-generated media are destroying our economy, our culture, and our values by Andrew Keen, The Little Book of Plagiarism by Judge Richard Posner, Remix: Making Art and Commerce Thrive in the Hybrid Economy by Lawrence Lessig and Free: The Future of a Radical Price by Chris Anderson (which was the subject of a plagiarism controversy of its own) just to name a few.

However, William Aicher is a relatively new addition to this field. Though he has blogged about copyright-related issues on his site for some time, his first book on the topic, a short self-published work called Starving the Artist: How the Internet Culture of “Free” Threatens to Exterminate the Creative Class, and What Can Be Done to Save It is a relatively unusual entrant into the field.

But what makes Aicher’s book unique isn’t what can be seen on the cover, but rather that it is a book on copyright that manages to avoid being mired in debates on law, philosophy and/or personal anecdotes. Even more impressive, it avoids personal attacks and even comes across as balanced and nuanced.

Though not particularly earth-shattering, it manages to be friendly enough for a casual reader and still have enough to hold the interest of someone more dedicated to copyright issues.

Still, it seems to be a book struggling for an audience and that may be the biggest flaw the book has.

Background

Aicher’s tome is not a lengthy work by any stretch. At only 70 pages not counting forward and introduction, even an average reader can breeze through this on a lazy afternoon.

The book is divided into three parts.

Creation: This section discusses the motivations behind creation, monetary and otherwise, as well as the costs of creation and how they are affected by copying.

Yours and Mine: Here, Aicher writes about the morals and ethics of piracy and other copyright infringement, saving the strongest sting for those who, according to Aicher, build businesses on the back of infringement.

The Future: Finally, Aicher discusses the current legal and market situation and how it may affect creativity in the near future.

The second section of the book is by far the longest, with the third being just one short chapter long, thus making most of the book closely focused on the ethics of piracy, including both the participatory culture created on the Web and the temptation of free works.

Legally, the book focuses by far most of its energy on the DMCA, specifically the notice-and-takedown regime. However, Aicher has taken the view that the system has enabled companies to abuse the law to build businesses on the back of infringement while claiming safe harbor.

All in all though, the book avoids delving too deep into the law, you’ll find no citations of famous cases or legal opinions. Instead, the book draws its rather lengthy references section primarily from news articles and other books, including many listed above. There are even a few Wikipedia entries cited, even though that might not be the best source of information for a book to be treated seriously.

But even with the at-times wonky citations, the book does an overall decent job talking about the issues of creation, copyright and ownership and avoids nearly all of the pitfalls other books fell into.

The Good

What makes Aicher’s book stand out is one word: Balance.

In almost every regard, Aicher’s book manages to straddle the line between two pitfalls without veering of course. For example, though Aicher includes anecdotes in his book, including how he used to run a BBS for sharing guitar tabs in a previous life, the book never feels like an autobiography, unlike Helprin’s book. Though there is a great deal of research and citation, it never feels like a stuffy academic paper, like Lessig’s work can at times. Finally, even though he has sharp feelings on the the issues, he refrains from insults and even admits that everyone is trying to think of the artist’s best interest, unlike both Keen and Helprin in their books.

All in all, the book takes an incredibly even keel. No insults, no excess of academia, no nostalgia. Aicher clearly wants his book to be approachable and read by those who disagree with him and works hard to introduce conflicting opinions and rebut them gently. Though his arguments may not be anything earth-shakingly new, the tone and the way they are presented is very refreshing.

On the whole, Aicher’s book is very well-written and easy to read. It manages to float through the topic of copyright smoothly and comfortably. Much like a ship going through an ocean, it doesn’t merely skim the surface nor does it sink into the depths. Instead floats just deep enough to avoid drowning and takes the reader on a three-hour tour of the copyright issues, without winding up on a deserted island.

The Bad

Though the book is, overall, a solid work. There were a few issues I took with it.

For one, though the book’s brevity is not, in and of itself, a strike against it the book’s third chapter is painfully short. At barely ten pages, the discussion about the future would seem to me to be the most important part of the book, the natural climax of the previous sixty. In fact, one could almost call the previous sixty pages a great introduction for a weightier book about the future of copyright and creativity but, just as the discussion gets truly interesting, the book abruptly ends.

Also, there were also a few minor errors in the book. One example is on page 44 where he refers to the Pirate Party as being anti-copyright and seeking to abolish copyright. However, all Pirate Parties, including Sweden’s, to which he was referring, simply favor extreme copyright reform, in this case reducing the term to five years and making non-commercial file sharing legal.

Another error was on page 61 when Aicher said that the law did not require that DMCA takedowns be filed by either the copyright holder or a designated agent and that such a requirement was the creation of Web hosts. That is simply not true. Section 512(c)(3)(vi) states that a notice must including the following:

A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

In short, if you submit a DMCA notice and you are not either the rightsholder or an authorized agent, you are committing perjury. Red flag takedowns are an unrelated issue that have all but been done away with in recent court decisions.

These errors are relatively minor and at least somewhat understandable given the angle Aicher is taking with the subject, but they serve to misstate the current copyright situation ways that are fairly vital.

Still, the technical details of the book play a fairly minor role in the work and the meat of the book is more about the broader issues. There, the book is solid and, even the parts I disagree with, I’m forced to admit that Aicher makes his case both compellingly and entertainingly.

Bottom Line

I want to recommend this book but I am unsure about who to recommend it to. If you’re reading this site, you probably are familiar with the back and forth of the copyright debate and have heard these arguments before, if not pondered them yourself. If you are interested in the copyfight, you either already agree with him or have your counter-arguments lined up already.

This best audience for this book is, in my view, people who have only a passive interest in the copyright debate. It’s a short, quick read that doesn’t lose even the most lay of the laypeople. It is akin to a tourist visit in the copyright wold, a horse-drawn carriage ride through the pro-copyright side of the argument. It sacrifices depth for breadth and quickness and that makes it approachable and at least somewhat useful to those with but a passing interest.

Unfortunately though, this audience isn’t likely to seek out this book or know to look for it. Even if they were given a copy, I doubt many would read it. Your casual file sharer or person that just doesn’t think about copyright isn’t going to sit down and read a book on the subject, even if they can get through in the time it takes to finish a bottle of wine.

Still, if you are interested in copyright you can do a great deal worse than Aicher’s book. Though far from perfect, short and not ground-breaking, it’s a good book to have on your shelf and considering that a paper copy is only $9.95 and a Kindle copy $4.95, it’s cheap to own and takes almost no time. Just don’t expect to be blown away or have your views changed.

It may not change your life, but it certainly won’t make you regret reading it.

[thanks to jonathan bailey via cc]

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Based on the (thankfully) limited time I have spent in and around prison, there is a clearly defined pecking order amongst inmates, with child molesters occupying the nadir and (failed) bank robbers at the zenith. Illegal immigrants and petty crooks generally fall comfortably in the middle. But I wonder where someone being sent to prison for failing to report income earned from selling porcelain knickknacks or toy trains on eBay will fit in?

We soon might find out. eBay Canada has announced that it will comply (albeit reluctantly) with an order from the Federal Court of Appeal to release to the Canada Revenue Agency gross sales data from 2004 and 2005 for eBay PowerSellers. Participants in the PowerSeller program must average at least $1,000 in sales per month for at least 3 months.

When I heard this news I had to go back and check my old eBay information to see if I was affected. In 2004, I had substantial sales on eBay and tried to get in on the PowerSeller program, but my numbers were just a smidge below the threshold so I wasn’t allowed to join their uppity little club. At the time I was a little pissed, but in hindsight I’m pretty glad they didn’t want me, given that one of the big perks of this optional club has now become CRA audits. It’s kind of like signing up for a Club Z card at Zeller’s and getting a free rectal exam from an angry proctologist with big hands and jagged fingernails. I didn’t want to be in their stupid club anyway.

This should serve as a nice little reminder- if you’re making money, you’re going to be taxed on it. There are all kinds of wonderful ways to reduce your tax burden legally, but hoping that nobody picks up on the thousands of dollars you’re making selling things online isn’t one of them. If you’ve misreported in the past, or failed to include income that probably should have been included, talk to a tax lawyer or accountant to see what can be done. CRA has a voluntary disclosures program that allows you to correct these mistakes and possibly avoid prosecution.

If you’re just selling random junk on eBay, you probably don’t have to worry about the taxman coming to call. While any gains from selling property (even personal items) are taxable, you’re only taxed if there’s an actual gain - that is, you sold it for more than you paid. For the vast majority of people just getting rid of stuff they found in the attic, there’s not going to be any gain at all. Even if you do make a little bit of profit, there’s a $1,000 exemption for most personal property, so you only get taxed on any profit in excess of $1,000. If you’re turning thousand dollar profits on random items lying around your garage that aren’t bags of marijuana, I’m impressed. However, if you’re buying or collecting items for the purpose of selling them online you need to be aware that there may be tax consequences. When your eBay-ing turns into a business, you get taxed just like the rest of us. I don’t like being taxed either, but it’s surely better than the notoriously bad turkey soup at Her Majesty’s Penitentiary.

[thanks to money grubbing lawyer and mike knell via cc]

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Dean Schizer, distinguished faculty, proud parents, family members, friends, and, most importantly, the Class of 2010. Thank you for inviting me to share in this moment and to join you in celebrating all of your accomplishments that have been, and most assuredly will be, achieved.

It is an honor to be back at Columbia Law School – although it’s something of a miracle that I ever got into this esteemed school in the first place. During my undergraduate years here in Morningside Heights, I was one of many students on this campus who felt strongly about, well, nearly everything. It was the 70′s. During my senior year, several of us took one of our concerns – that black students needed a designated space to gather on campus – to the Dean’s office. This being Columbia, we proceeded to occupy that office.

The target of that sit-in was Dean Henry Coleman. He heard us out, led us toward common ground and, eventually, to a compromise. But I’m not sure he was very happy about, shall we say, his forced captivity. In the ultimate display of chutzpah, however, I still asked Dean Coleman to recommend me for admission into this law school. And, lo and behold, he agreed. Only at Columbia, my friends. That’s one of many reasons why I love this university.

To return today, as our Nation’s Attorney General, to the place where I first studied the law, where I first dreamed of both serving the cause of justice and our country’s Department of Justice, is an extraordinary privilege. I am proud to be part of this distinguished institution, and it is a part of me. And I am grateful to be among the first to welcome such talented men and women into Columbia Law’s alumni family. And today, as always, I am glad to be home.

I was born a few subway stops away in the Bronx. I grew up in Queens. I attended Stuyvesant High School in Manhattan, and then spent seven exhilarating years at Columbia. It was across the street that I unraveled torts and studied, for what seemed like months, Palsgraf v. Long Island Railroad Company. It was in the library that I discovered, and hated, contracts and grew fond of all-nighters. It was in the legendary Professor Telford Taylor’s criminal law class that my interest in combating crime and my commitment to the rule of law was inspired. And it was during law school summers that I had the opportunity to work for the NAACP on a few of the seminal discrimination cases of the day. This law school defined me in ways I am still realizing. And I’m confident that, in 35 years, you, too, will reflect and also realize that – in important and unexpected ways – this university has influenced your work and enriched your life.

Of course, the law school has changed since I was here. There are more international students and offerings; there are a dozen or so journals, instead of just two. And what’s this I hear about the construction of 200 luxury on-campus dorm rooms? When we were college students here, President Obama and I were lucky to have hot running water.

In the years since I received my diploma, I suppose I’ve changed, too. According to an American Prospect article published earlier this year, I “entered Columbia College in the fall of 1969, just in time to grow an Afro and participate in some heated student protests.” But something else has changed since 1976, when I was sitting in your seats, watching – as Dean Schizer mentioned – then-Attorney General Edward Levi receive an honorary degree. Since then, something more consequential than hair styles and protest strategies has evolved. And that something is the law. Over the past three and a half decades, our legal system has transformed in ways that, while easy to overlook or take for granted, are critically important.

Consider that when I first enrolled in this university, I could not vote – even though I was 18. I could, however, drink. Now, of course, the right to vote is afforded to every 18-, 19-, and 20-year-old. Or consider that, as recently when I became Attorney General last February, there was not a single line in nearly 225 years of U.S. Code that referred explicitly to gender identity. Today, the Matthew Shepard and James Byrd Act – which the President signed into law last October – does just that, finally protecting our Nation’s gay, lesbian, bisexual and transgendered citizens from vicious hate crimes.

Those are just two examples. In every field of the law, progress is being pursued – and made. This is our Nation’s oldest – and perhaps finest – tradition. Since America’s earliest days, young, dedicated lawyers have been using their knowledge and training to stand up for justice, finding that their education not only armed them with an ability to change the law, it also provided them with the power to change the world. Our best example of this may be our earliest example: the development of our Constitution. Today, it is worth remembering – and mentioning – that our Constitution was not created in a vacuum. It was, in fact, created to correct flaws in the legal framework that had been established by the Articles of Confederation.

Now, don’t worry. I’m not here to deliver a lecture on the law. I’d say you’ve had your fair share of those. Trust me, over the past year, I have, too. Instead, I’d like to offer you just the opposite: a slight but significant correction to the history many of us grew up studying – the story of how our Nation’s most important founding document, our Constitution, was established.

Two hundred and twenty three years ago today – May 14, 1787 – a motion was made in Annapolis, Md., calling every state delegate to Philadelphia for the Constitutional Convention. That summer, as the story goes, the wise old men of the Republic gathered to draft what would, despite its imperfections, become the greatest legal document in the history of mankind. These framers rightly believed that the Constitution would provide a framework to extend their commitment to justice and opportunity for all. And, we have been taught, it was these elder statesmen who hoped it would serve as a shining example for all the world.

The only trouble with this story is that it’s not entirely accurate. Through some interesting research, two great historians – Stanley Elkins and Columbia’s own Eric McKitrick – have provided a fuller picture. They’ve revealed that, rather than being the product of venerable old sages, our Constitution was actually established at the insistence of, and through the advocacy of, young people – specifically, young lawyers.

Those who supported the Constitution, the Federalists, were on average at least a decade younger than their opposition. Several leading Federalists were under 35, and more than a few of them were in their twenties. At 44, the oldest Federalist was George Washington. And many of his contemporaries, like Columbia University alum, John Jay, hatched their ideas about a strong, democratic central government during their early years spent studying the law.

This history underscores a trend that we’ve seen, time and time again, in every chapter of America’s story. Young people, it seems to me, are uniquely qualified to re-imagine – and in doing so, to reinvigorate – the law and the world. Many of the great social advancements in our Nation’s history were, in no small part, the result of ideas that law school graduates envisioned and, over time, implemented. This is evident whether you’re looking at the eradication of slavery, the birth of the Women’s Suffrage Movement and the passage of the 19th Amendment, or the passage of the 26th Amendment that ultimately enabled young people to participate – in record numbers – in the 2008 Presidential election. And it is especially true when you examine the conception and creation of our civil rights laws.

Several weeks ago, I traveled to Greensboro, N.C., to celebrate the 50th Anniversary of the Woolworth lunch counter sit-ins – a small student movement that quickly grew into a nationwide cause and, over time, inspired sweeping positive change. It motivated several Columbia law students to take part in Freedom Rides across Mississippi. It paved the way for Martin Luther King, Jr.’s famous March on Washington in 1963. And it helped to spread the philosophy of non-violent protest that advanced the civil rights legislation of the 1960s, and – I’d argue – eventually led to the election of our Nation’s first African-American President, as well as the appointment of its first African-American Attorney General. The exceptional commitment and capacity of young people, especially those willing to devote their legal skills and training to the struggle for equal justice and opportunity, always has been – and will continue to be – essential in moving our Nation forward.

Columbia Law School has a long tradition of graduating students unwilling to sit on the sidelines of history or miss an opportunity to work toward, and fight for, justice. Take Bella Abzug, class of 1947. After graduating from Columbia Law in her twenties – but before becoming one of the world’s leading feminists – she took on civil rights cases in the south. Or take Judge Robert Carter, class of 1941. The master’s thesis he developed here eventually defined the NAACP’s legal strategy in defending the right to freedom of association under the First Amendment. And I understand that one of our other famous alums, Theodore Roosevelt, was in such a rush to make an impact that, after his first year on campus, he dropped out to pursue a life of public service. Think about what he might have made of himself if he had stayed here like you all and graduated.

Many of you will follow in this great tradition. In fact, some of you already are. Brittani Kirkpatrick began a new law journal that explores the intersection of race and law, helping to chart the future of this still-burgeoning field. Justin Steil is fusing his background in urban planning with his legal education to help determine the future of land-use laws in a rapidly changing housing environment. And Janitra Supawong is helping to transform immigration and domestic violence law around the country.

There are countless more examples in this sea of blue before me: Jennifer Sokoler’s work on human rights; Sam Salganick’s on health care; Emma Neff’s on international reproductive rights. Each of these students, and many others, are harnessing the power of law to serve as an instrument of change.

Of course, you can do this in any number of ways. And you will, for this is a terrifically accomplished and diverse class. One in three among you is a minority student. You represent almost every state and more than 50 countries. Fifteen percent of you already have advanced degrees. Not only are you scholars, you are also soldiers, cancer survivors, artists, rock stars, religious leaders, entertainers, bankers, novelists, journalists and public servants. Any basketball players?

And, now, you are entering an uncertain world – one burdened by economic recession but showing signs of recovery. You are taking leave of this campus in an age of unprecedented challenge, an era of new threats, and a time of war. Yet, you must resist the temptation to feel as though you have been dealt a bad hand. You have not been dealt a bad hand. You have been given a rare opportunity. Consider the many examples throughout history of people your age, with exactly your training, who have improved the course of our country and strengthened the structures and rules that govern our society. And then consider how many of those leaders were trained in the law – quite a few.

I expect no less of each of you, whether you are heading to one of the 30 different states, or to one of the dozens of countries, represented by your post-grad jobs. Already, you have secured impressive government and public interest positions. Record numbers of you are pursuing clerkships. You will soon begin fellowships at nonprofits and NGOs that are in desperate need of your counsel. You will provide legal services to indigent populations. And you will, despite hard times, be entering the world’s top law firms.

Whatever your path, by any measure, you are already successful. But as much as you care about your own future success – and you should, for you have worked hard for it – I urge each of you to look for ways to serve others and to strengthen both our justice system and our commitment to the rule of law. Not only do you have the ability, you now have the credibility. And you also have the responsibility. A Columbia responsibility.

Of course, you may be told many times over the next few years to wait. You may be told that your vision for a better system needs ripening, or worse, a reality check. But I say: Trust your instincts. Believe in yourselves. Follow your own ideas – unless, of course, you’re one of the two graduates who are coming to work at the Department of Justice, where you’ll be taking your orders from me.

Whether you eventually lead movements, rule from the bench, return to the classroom, run for office, advise clients, or defend the accused, you are now ready to define our future. You are no longer just students of the law. You are now stewards of our Nation’s justice system. I believe the privilege of earning a Columbia Law degree brings with it an ongoing responsibility to use your gifts and training to improve this system. And I hope I can count on each of you to be partners in the pursuit and administration of justice – however you decide to serve.

You may chose to offer input into how our Nation is going to combat crime, protect our national security, strengthen our education system, safeguard the environment or ensure that all Americans have the opportunity to realize their dreams and fulfill their potential. But you can all go forward from this place, and from this moment, and give meaning to the ideals that animate our laws. You can also influence these laws in ways that call our country to aim higher, become better and do more for the most vulnerable among us.

But, before you do, I encourage you to look back, to think about the most exciting vision you’ve had for improving our laws – and our society – during your time here. Perhaps it’s something you’re working toward now. Or maybe it’s something you’ve never shared. Today, write it down. Imprint it on your brain. Talk about it with one of the family members who has supported you, or one of the friends you’ve come to rely on, or one of the professors you’ll never forget.

Then, keep this goal before you. At crossroads throughout your career and your life, ask yourself: Have I done it yet? And, just as so many other Columbia Law School graduates have, keep asking this question – even when your hair has turned gray, even after your Afro is long gone. Keep asking until your answer is, “Yes.”

This afternoon, as we celebrate all you’ve achieved, I am eager to see where each of you will lead our nation and our world. But wherever it is, know this: We’re counting on you. I’m counting on you. Your nation is counting on you. And, starting now, history is counting on you.

Good luck, and congratulations. I am proud of you all.

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Those who argue for balanced copyright policies are often characterized as anti-copyright. Yet in my research I’ve seen at least two examples that suggest that the characterization (which I would prefer not be used at all) might be appropriately applied to the collectives, at least with respect to how the Supreme Court of Canada interprets copyright.

First, Quill and Quire, a Canadian publication on the book industry, featured a revealing article on pressure from Quebec creator groups against the Grand Bibliothèque, Montreal’s new library.  The library reportedly boasts an impressive collection of works from Quebec creators, including 13,000 films and 90,000 CDs and DVDs.  The library permits personal copying by providing computers with CD burners in the library. It says that it is vigilant about ensuring that patrons do not make multiple copies.

Nevertheless, the copying has angered ADISQ, the Quebec association of performing artists and producers.  The article notes that several ADISQ members are calling on the library to stop the copying of CDs from its collection.  Eduardo Da Costa, the agent for a popular Quebec singer Marie-Chantal Toupin, says, “there’s no difference between copies sold at flea markets and those made in the library.”

Arguments that equate piracy in flea markets to private copying, which generated more than $39 million last year, are so far removed from what Canada’s courts say are the policy goals of copyright that advocates of that line of thinking could be characterized as anti-copyright.

Similarly, Access Copyright issued a press release responding to a CMEC press conference on education and copyright.  Maureen Cavan, Access Copyright’ s Executive Director, is quoted as saying that “the government cannot legislate that Canada’s creators and publishers be made to work for free when their works are copied from the Internet instead of purchased, but that is precisely what would happen if they allow the exemption the education sector is seeking.”

Once again, arguments that suggest that the exercise of user rights forces creators to work for free distorts what the Canada’s courts say copyright is all about.  The copyright protection that creators enjoy is based on a policy decision that providing such protection is in the public interest. The protection is not absolute: there are user rights that balance such protection and enable Canadians to copy works under appropriate circumstances without further compensation.  This is particularly true in the education context, where there are broad exceptions for research and private study.

What is most troubling about the anti-copyright rights holder view is its impact on those who sit in the middle.  The Supreme Court of Canada has ruled that the Grand Bibliothèque is entitled to assume that their patrons will use their equivalent lawfully (much like the Great Library in Toronto). Similarly, the library is not only entitled to provide a paper copy to patrons, but following CCH is presumably entitled to provide patrons with faxed (and likely electronic) copies of those same works under the fair dealing user right.

That is the law as it is.  Yet under pressure from anti-copyright rights holders, the library practices a law as rights holders would like it to be, finding it necessary to be vigilant about stopping multiple copies and declaring that it “is ready to work out more stringent anti-pirating policies with interested parties.” The same is true of Canada’s universities, who appear to have bought the Access Copyright vision of copyright hook, line, and sinker, paying millions in annual license fees for copying that is likely covered by their user rights.

[thanks to michael geist and kitonlove via cc]

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Unless you’re from Mars, a distinct possibility since it’s so close, you’ve probably heard about Judge Moore. Regardless of where your beliefs stand, here are some additional observations to consider.

Tuesday’s Los Angeles Daily Journal (you may need a subscription to view) featured an article that a statue of Moses, holding the ten commandments, is immediately above the entrance to the Los Angeles County Superior Court downtown civil courthouse. He’s right there next to a medieval knight holding the Magna Carta and a founding father with the Declaration of Independence. All great documents, to be sure.

This morning’s CNN Headline News featured an email comment from someone commenting on Judge Moore’s stand that asked the question whether the act of swearing on the bible before you give testimony will be yanked out of court, too. (By the way, it’s already gone – and you don’t swear “so help me God” anymore.) Courts have consistently required the separation of religous symbols from government-related activities. There are legions of cases where nativity scenes have been removed from city parks, as required by Courts interpreting the First Amendment.

With the plurality of religions now in the United States, the wisdom of our founding fathers couldn’t have been more appropos – especially when you consider that they came from the time when religon was often a government cram-down, and the need to avoid that today.

Religous symbolism exists in any number of government activities – just flip over your dollar bill, or read the Constitution as Judge Moore suggests. But we’re also founded on religious tolerance, necessary even more now with the many religions observed here.

There’s no easy answer to the question, and one that requires each of us to search our own beliefs for guidance before casting the first stone.

[thanks to j. craig williams and sebastian bergman via cc]

There are days every now and then when my actual legal work directly intersects with my blog work.  This was one of those days.

On May 21, a judge of the U.S. District Court for the Eastern District of California dismissed a complaint filed by a woman who said she had purchased “Cap’n Crunch with Crunch Berries” because she believed it contained real fruit. The plaintiff, Janine Sugawara, alleged that she had only recently learned to her dismay that said “berries” were in fact simply brightly-colored cereal balls, and that although the product did contain some strawberry fruit concentrate, it was not otherwise redeemed by fruit.  She sued, on behalf of herself and all similarly situated consumers, some of whom may believe that there are fields somewhere in our land thronged by crunchberry bushes.

According to the complaint, Sugawara and other consumers were misled not only by the use of the word “berries” in the name, but also by the front of the box, which features the product’s namesake, Cap’n Crunch, aggressively “thrusting a spoonful of ‘Crunchberries’ at the prospective buyer.” Plaintiff claimed that this message was reinforced by other marketing representing the product as a “combination of Crunch biscuits and colorful red, purple, teal and green berries.” Yet in actuality, the product contained “no berries of any kind.” Plaintiff brought claims for fraud, breach of warranty, and our notorious and ever-popular California Unfair Competition Law and Consumer Legal Remedies Act.

Under the UCL, courts have held that a plaintiff must show that a representation was “likely to deceive a reasonable consumer.”  [As a disclaimer, I should tell you that my firm represents defendants in UCL cases (among others).]  Actual fraud claims, and warranty claims, are harder to prove, so if Sugawara didn’t win on the UCL claims, she would probably not win anything at all.  And she did not:

In this case . . . while the challenged packaging contains the word “berries” it does so only in conjunction with the descriptive term “crunch.” This Court is not aware of, nor has Plaintiff alleged the existence of, any actual fruit referred to as a “crunchberry.” Furthermore, the “Crunchberries” depicted on the [box] are round, crunchy, brightly-colored cereal balls, and the [box] clearly states both that the Product contains “sweetened corn & oat cereal” and that the cereal is “enlarged to show texture.” Thus, a reasonable consumer would not be deceived into believing that the Product in the instant case contained a fruit that does not exist. . . . So far as this Court has been made aware, there is no such fruit growing in the wild or occurring naturally in any part of the world.

The court, Judge Morrison England, Jr., also pointed out that the plaintiff acknowledged in her opposition to the motion to dismiss that “[c]lose inspection [of the box] reveals that Crunchberries . . . are not really berries.” Plaintiff did not explain why she could not reasonably have figured this out at any point during the four years she alleged she bought Cap’n Crunch with Crunchberries in reliance on defendant’s fraud.

Finally, the court held that while a first-time loser on a motion to dismiss would typically get a chance to amend the complaint, this one wouldn’t:

In this case, . . . it is simply impossible for Plaintiff to file an amended complaint stating a claim based upon these facts. The survival of the instant claim would require this Court to ignore all concepts of personal responsibility and common sense.  The Court has no intention of allowing that to happen.

Case dismissed.

Judge England also noted another federal court had “previously rejected substantially similar claims directed against the packaging of Fruit [sic] Loops cereal, and brought by these same Plaintiff attorneys.”  He found that their attack on “Crunchberries” should fare no better than their prior claims that “Froot Loops” did not contain real froot.

UPDATE 1: Janine Sugawara’s Lawyer Chimes In

The tale of Janine Sugawara, the woman who sued the manufacturer of “Cap’n Crunch with Crunch Berries” for allegedly misleading her about the “berries,” has turned out to be extremely popular, bringing literally tens of thousands of people to this site over the past few days.

Unfortunately, one of them was her lawyer.

He thought I had been unfair to his client and asked me to clarify that she had not alleged that she personally believed “crunchberries” to be an actual kind of fruit.  This was a little puzzling to me, especially since the judge who dismissed her case seemed to have interpreted her claims the way I had (and I had quoted his opinion at length in my post).  The lawyer ultimately seemed to accept that this was understandable, but asked me to look at the pleadings and the motion for reconsideration they have filed (that’s the “update” – they are asking the judge to reconsider), in order to get a better sense of what the plaintiff was really arguing.  So I did that.

If you read her complaint(s) very closely, Ms. Sugawara may not have clearly said that she thought crunchberries were an actual fruit that exist in nature. But she did claim (and still does) that she was misled by the Crunchberries packaging, specifically (1) the word “berry” in the name of the product, (2) the picture of “pieces of cereal in bright fruit colors, shaped to resemble berries,” and (3) “the product’s namesake, ‘Cap’n Crunch,’ thrusting a spoonful of ‘Crunchberries’ at the prospective buyer.” See Motion for Reconsideration at p. 2. In the motion, she then says this: “There can be no other reason for the emphasis on berries than to lead consumers to believe the Product is made with real fruit content.” Id.

So if I understand correctly, she wasn’t saying she thought the cereal was actually made with a fruit called “crunchberries,” but rather that the word “berries” and the colorful berry-like objects on the box led her to believe that the “crunchberries” being thrust at her by the Cap’n contained some kind of real berries or real berry parts, when in fact they did not. (Actually, they did – at least “a touch of strawberry fruit concentrate” – though not very much. But let’s set that aside for now.)

There is a distinction there, but I’m not sure it’s one that makes much of a difference. Here’s where I think the problem is: how can a reasonable consumer claim to be misled by the word “berries” immediately following the word “crunch,” if that person does in fact know whether or not “crunchberries” really exist? Shouldn’t the use of a term that the person supposedly knows is not real be considered a reasonable signal that what’s inside the box might not be real, either?

I mean, if you read “The Hobbit,” I’m not sure you can complain later that you thought it was going to be a true story.

What is really through the looking glass here is that the woman’s lawyer does have a point. The allegations in this case were not too different from those in some other cases that have survived a motion to dismiss under California consumer protection laws. But it is fair to say that this may be because those laws encourage weak lawsuits, not because Janine Sugawara had a compelling case. I can understand that she probably didn’t like the implication that she isn’t bright enough to know there are no “crunchberries.” But the risk of that implication is probably inherent in putting your name on this kind of a complaint.

Remember, though, that a low-IQ plaintiff is not necessarily the inference that should be drawn.  Another possibility is that she is an entirely normal person who knew perfectly well that there are no “crunchberries,” and probably knew that “Cap’n Crunch” is not a fruit-laden cereal. Certainly, based on the Internet reaction, it does seem like most conscious human beings know both these things.  But if there is a law out there like California’s UCL, which is so broad that it has permitted lawsuits to go forward on even dumber facts than these (and trust me, it has), then it might be a rational and intelligent decision to try to get some money out of it.  But obviously, the more rational and intelligent a plaintiff is portrayed to be, the less plausible it is that he or she was really deceived by, let’s say, an aggressive spoon-wielding cartoon sailor. So there is an inherent tension here, of which UCL plaintiffs in borderline cases should be aware.

As for the motion for reconsideration, the argument there is basically that a judge should never, or almost never, grant a motion to dismiss by just looking at the case and deciding that no reasonable consumer would bring it. Plaintiff argues that whether a practice is “deceptive” is “largely a question of fact that should be determined only after the parties have had the opportunity to complete discovery and present evidence.” Id. at p. 8.  But the reality is that most cases settle if they get that far, because discovery and presentation of evidence are expensive. If a judge can’t toss a weak case early on, then plaintiffs in some really lame cases will get paid, and more lame cases will be filed.

That’s okay with me, because it gives me (and others) plenty to write about. But it does have costs. Anyway, I hope I’ve now clarified matters in the Crunchberry case, and also provided fair warning that those who file lawsuits with comedy potential should not be surprised if they end up on the Internet.

UPDATE 2: Roy Werbel Files Case Against Crunch Berries & Froot Loops

As I wrote, a number of lawsuits have been filed in California over the past couple of years by people who say they were deceived by certain representations on cereal boxes. Specifically, plaintiffs including Janine Sugawara, Mark McKinniss and Keith Videtto have alleged they were led to believe that “Crunch Berries” and/or “Froot Loops” are made with real fruit even though the “froot” mentioned in the products’ names is obviously fictional.

I still think this is like claiming emotional distress because you just learned “The Hobbit” isn’t a true story.

When Sugawara and Videtto were dismissed in May 2009, I thought the Cap’n might have gotten away with his heinous crimes (which according to Ms. Sugawara included lurking on grocery-store shelves and aggressively thrusting his Crunch Berries at unsuspecting consumers) but recently yet another person has surfaced, this time in San Francisco, who is willing to swear under oath that he was outsmarted by a cereal box. Or boxes, actually, because Roy Werbel filed cases against the makers of Crunch Berries and Froot Loops, apparently having been baffled by both.

Although he is represented by a different attorney, Werbel’s complaints are nearly identical to those in the earlier cases. For example: “[Plaintiff] was misled by the packaging and marketing, which by design and intent convey the message that the Product contains real, nutritious fruit,” alleges Werbel about a product named “Froot Loops.” The complaint continues, “[h]ad he known that ‘Froot Loops’ contained no fruit, he would not have purchased it.” This, of course, is pleaded as a class action, and Werbel alleges that the manufacturer’s practices with regard to Froot Loops “present a threat to members of the general public . . . .” Oh, the humanity.

By my count, these are the sixth and seventh lawsuits in California against the manufacturers of these two fictitiously named cereals. But hey – just because you are 0-5 and your arguments have been openly mocked by judges as well as a large percentage of the nation’s bloggers does not mean you shouldn’t give it one or two more tries. It does mean that, presumably, PepsiCo and Kellogg’s are highly unlikely to settle, and that in two or three months plaintiffs should be 0-7.

Attention, San Diego — these guys have now tried the Northern, Eastern and Central Districts of California, so I would expect cereal suits eight and nine to be filed in your neck of the woods sometime early next year.

UPDATE 3: Roy Werbel Sues Kellogg USA Again

Roy Werbel and his counsel are back with yet another attempt to call out Kellogg USA for its dastardly marketing of “Froot Loops” cereal. As you may recall, Werbel sued Kellogg in state court in San Francisco last October, alleging that the “Froot Loops” name had misled him by causing him to believe that “the product contains real, nutritious fruit.” That case was dismissed without prejudice in February, on the grounds that Werbel had not successfully served Kellogg. But Werbel sued Kellogg again on April 19, despite the fact that he faces much bigger problems with this lawsuit than just trying to get the defendant served correctly.

As at least two federal judges have previously held, use of the word “Froot” cannot reasonably be interpreted as suggesting the presence of real “fruit,” not least because “froot” is not real, and real fruit does not come in “loops.” See, e.g., Videtto v. Kellogg USA, 2009 WL 1439086 (E.D. Cal. 2009) (noting that the ring-shaped cereal “does not resemble any known fruit”); McKinnis v. Kellogg USA, 2007 WL 4766060 (C.D. Cal. 2007) (making a similar observation).

Yes, you are reading correctly — there has been more than one similar “Froot Loops” case, and in fact there have been at least four such filings (counting Werbel’s twice). And for what may be obvious reasons, if this claim is being made there is quite likely to be a similar claim about “Crunch Berries” (emphasis added) somewhere nearby, as there was last summer (Sugawara v. PepsiCo) and again in the fall when Roy Werbel showed up in San Francisco alleging that both cereals had confused him. This new lawsuit would therefore be the eighth (to my knowledge) alleging some sort of deception stemming from fictional fruit.

[thanks to kevin underhill and zanastardust via cc]

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Mario S. Levis, aka “Sammy Levis,” was found guilty on securities and wire fraud charges after a five-week jury trial before U.S. District Judge Thomas P. Griesa for his role in a scheme to defraud investors and potential investors in the stock of Puerto Rico-based Doral Financial Corporation (Doral) that took place while he was the Treasurer and Senior Executive Vice President of Doral, Preet Bharara, the U.S. Attorney for the Southern District of New York, announced today. The scheme, occurring between 2001 and 2005, involved misrepresentations that Levis made regarding certain core assets of Doral. An aggregate decline in shareholder value of approximately $4 billion followed the unraveling of the scheme.

According to the superseding indictment and the evidence at trial:

Doral, with mortgage banking operations in Puerto Rico and New York City, was a leading residential mortgage lender in Puerto Rico. Between 2001 and 2005, Levis corrupted the process by which Doral determined the publicly reported value of certain non-cash assets carried on Doral’s financial books called “interest-only strips” (IOs). Doral represented to the public, in its annual financial statements, that the aggregate value of its IOs, and company earnings associated with those IOs, were increasing substantially year after year. By the beginning of 2005, Doral publicly announced a streak of 28 quarters of “record earnings” based in significant part on the stated value of its IOs.

During the same time, Doral’s stock price steadily increased from approximately $10 per share in early 2000 to almost $50 at the end of 2004. Also during this time frame, Levis and other members of his family were substantial holders of Doral securities. Between 2001 and 2004, the value of Levis’s stock in Doral tripled to over $60 million.

In its public filings with the U.S. Securities and Exchange Commission (SEC), Doral represented that the value of its IOs was based, in part, on two “outside” and “independent” expert valuations provided to Doral on a quarterly basis. According to Doral’s filings with the SEC and representations by Levis to investors, these outside independent valuators were performing the valuation using their own economic and portfolio assumptions.

In fact, however, Levis thoroughly corrupted those valuations. For example, the valuation provided by a Morgan Stanley trader in fact involved the trader merely recopying numbers provided by Levis without any other work whatsoever, and then subsequent attempts by Levis to conceal that fact from Doral’s auditors and lawyers. The other valuation from Popular Securities (Popular) actually involved Levis dictating key assumptions for Popular to use in performing its valuation analysis. In both cases, Levis failed to inform the valuators that Doral was treating their valuations as independent or citing their work in Doral’s SEC filings.

In March 2005, when an executive at Popular directly asked Levis whether Popular’s valuation was being used as an independent valuation, Levis denied that Popular was one of the independent valuations. Later, when investors pressed Levis to identify the sources of the independent valuations described in Doral’s SEC filings, he falsely told investors that he could not identify the sources due to confidentiality agreements.

Levis also materially misrepresented to the investing public — in direct communications with investors, investor representatives, and market analysts — certain specific characteristics of the Doral IO portfolio. Specifically, among other things, Levis falsely claimed provision in Doral’s loan-sale agreements called “caps,” which would purportedly function to prevent substantial write-downs of the IOs if interest rates continued to rise.

Beginning in mid-January 2005, when Doral announced an approximate $97.5 million write-down of the stated value of its IOs attributed to rising interest rates, and Levis’ scheme concerning the IO valuations began to unravel, the market price of Doral’s common stock began to drop steadily from its high of almost $50 per share. By the time Levis resigned from Doral in late August 2005, the price of Doral’s shares had fallen more than 70 percent to approximately $14.13 per share. In total, the company’s shareholders had suffered an aggregate decline in shareholder value of approximately $4 billion.

Levis was found guilty of one count of securities fraud (Count One) and two counts of wire fraud (Counts Three and Five). The jury found Levis not guilty of one count of wire fraud (Count Four), and the Court dismissed an additional count of wire fraud (Count Two). Levis faces a maximum sentence of 20 years in prison on the securities fraud count and a fine of the greatest of $5 million or twice the gross gain or loss from the offense. For each of the wire fraud counts on which he was found guilty, Levis faces a maximum sentence of 20 years in prison and a fine of the greatest of $250,000 or twice the gross gain or loss from the offense.

Levis, 46, of San Juan, P.R., is scheduled to be sentenced by Judge Griesa on Sept. 14, 2010.

U.S. Attorney Preet Bharara stated: “Senior executives of publicly traded companies have to tell the investing public the truth, even when it hurts. It’s that simple. Today, a Manhattan jury found that Mario Levis of Doral intentionally flouted this bedrock principle, causing a colossal $4 billion loss to his company’s shareholders. Our office, working more closely than ever with the FBI and the SEC, will continue to pursue corrupt professionals in the financial services industry whose greed-driven misconduct hurts honest investors and threatens our markets.”

U.S. Attorney Bharara praised the work of the FBI and thanked the SEC for its assistance in the case.

This case was brought in coordination with President Barack Obama’s Financial Fraud Enforcement Task Force, on which Mr. Bharara serves as a Co-Chair of the Securities and Commodities Fraud Working Group. President Obama established the interagency Financial Fraud Enforcement Task Force to wage an aggressive, coordinated, and proactive effort to investigate and prosecute financial crimes. The task force includes representatives from a broad range of federal agencies, regulatory authorities, inspectors general, and state and local law enforcement who, working together, bring to bear a powerful array of criminal and civil enforcement resources. The task force is working to improve efforts across the federal executive branch, and with state and local partners, to investigate and prosecute significant financial crimes, ensure just and effective punishment for those who perpetrate financial crimes, combat discrimination in the lending and financial markets, and recover proceeds for victims of financial crimes.

The case is being prosecuted by the Securities and Commodities Fraud Task Force of the U.S. Attorney’s Office. Assistant U.S. Attorneys William J. Stellmach and Daniel A. Braun and Special Assistant U.S. Attorney Jason M. Anthony, are in charge of the prosecution.

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Sometimes even the best of plans go awry. Almost right out of a movie, Brandi Bradley enticed a casino customer to leave the casino to “party.” The plan was simple. Once Brandi got the victim, – in the words of the Court, “a Mr. Mataya, [who] wore enough gold, diamond, and ruby jewelry to mark him as the right kind of target” liquored up and into his car, two men planned to jump in the car at a predesignated spot to rob him, stuff him in the trunk and leave him there.

Unfortunately, Mataya was either so drunk or just couldn’t pull it together that when the time came to put him in the trunk, he couldn’t get it open. Frustrated, the two men pumped eight shots into Mataya and sped away.

Fortunately for Mataya, he survived. Unfortunately for Brandi, she got caught – as if we couldn’t figure out that was going to happen given her brilliant planning.

This case is more interesting for its facts, but here’s the actual holding: previously depublished, but certified for publication today, the California Court of Appeal found that although Brandi could be convicted of two crimes, she could not be consecutively sentenced for both crimes because she only intended to commit one: rob Mataya.

Kind of reminds me of my first appellate case, Hajek v. Iowa Board of Parole regarding sentence enhancements for committing two, separate consecutive crimes. While in law school as a student, I succeeded in reversing the Iowa Court of Appeal and the Iowa Attorney General.

The moral of these stories is that it never pays to commit a crime twice, or for that matter, two crimes.

[thanks to j. craig williams and tiffa130 via cc]

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With the release of leaked versions of the proposed Anti-Counterfeiting Trade Agreement (ACTA),  opposition to the drafting process continues to grow.  Recently IFLA issued a statement arguing that while it is appropriate for governments to act to stop commercial counterfeiting, the copyright and patent issues at stake in ACTA would be better addressed through the World International Property Organization (WIPO). They also object to the secrecy of the negotiations.  The Library Copyright Alliance (LCA) has also been active in its opposition to ACTA, most recently joining in a letter complaining about provisions in the leaked text and issuing a statementof LCA concerns.  Earlier, Janice Pilch had prepared an issue brief on ACTA for the LCA.

One thing that I have not seen in the library association statements is any mention of the border control measures found in Article 2 of the draft text.  In spite of the assurance of the U.S. Trade Representative that ACTA would not require alterations to U.S. law, the draft border measure provisions seem in conflict with Section 602 of the Copyright Act. For example, the draft Article opens with the assurance that travelers may import copyrighted material when it is for non-commercial purposes and included in their personal baggage.  This mirrors part of the exception found in 602(a)(3)(B) of the Copyright Act, which allows people to import or export personal copies in their baggage.  Some of the proposed language in ACTA, however, would limit such importation to the duty-free allowance, a limitation not found in U.S. law.  More importantly, there appears to be no provision that would allow individuals to import books and movies directly from abroad, as the current law does; there would be no more ordering books from Amazon.de or Amazon.fr for your personal use.

In addition, the leaked text contains no exception for libraries.  Under 602(a)(3)(C), non-profit libraries may import up to 5 copies of a foreign book or record for lending and archival purposes, and 1 copy of a foreign movie for archival purposes. As it stands, ACTA would eliminate the ability of libraries to purchase foreign material directly from foreign distributors unless those distributors had been expressly authorized by the copyright owner to distribute the work in the U.S.

In the leaked text, the sections jump from Article 2.x to Article 2.6.  We can hope that library exceptions are included in the missing articles.  But the border measures section are just one more example why the secret ACTA negotiations are a bad idea.

UPDATE: Jonathan Band was kind enough to explain to me that “border measures” are different than “copyright exemptions.”  If I understand the distinction properly in theory even under the current law, the Customs Bureau could seize a shipment of books or movies to a library as being an importation violation.  The library could then petition for the release of the material, using its exemption in 602.  Jonathan argues, probably correctly, that nothing in ACTA would change this.  The 602 exemptions will still exist.

I won’t argue with him as a matter of law.  I am more worried about whether ACTA may lead to a change in practice.  For example, the current “border measures” found in 19 CFR 133 authorizes the Customs Bureau to seize “infringing copies.”  These are narrowly defined: pirated copies that “are unlawfully made (without the authorization of the copyright owner).” Could ACTA encourage a broader definition, one that might encompass the marketing behaviors of publishers, and hence encourage more seizures at the border (even if eventually the law would allow that content to enter)?  If there is no need to specify the library exemptions in ACTA, why are the drafters including the personal exemptions found in 602?

Jonathan is probably right that my worries are unfounded – but I am going to read closely the promised full draft treaty when it is released.

[thanks to rachel kramer and peter hirtle via cc]

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Many people aren’t surprised when a debt collector calls. After all, they know they owe an overdue debt. But what happens when you’re taken by surprise because you didn’t realize that you owe a debt or had forgotten that you owed money? Bill collectors often spring this kind of surprise on unsuspecting people, and make people so desperate that they end up paying the bill – even when they don’t owe the money in the first place.

That’s why, if a debt collector calls, the first step you should take is to demand validation of the debt. According to the Fair Debt Collection Practices Act, a bill collector must notify you in writing within five days of contacting you via phone. In their letter, they must state the name of the creditor, the amount you owe, and the fact that you have 30 days to dispute the debt. The bottom line is that, when you receive a debt collection call, ask for documentation of the debt in writing. The FDCPA says that a debt collection agency can’t call or write you about the debt again until you receive the proof.

When you get the paperwork, don’t put off looking at it thoroughly. Even though it might be tempting to set it aside, it’s important to go through the letter line by line. You may find out that you do not owe the debt. Perhaps you paid it long ago. Perhaps you didn’t pay the debt, but it’s a very old debt.

Very old debts are often purchased by debt collection agencies for a song. These are debts that original creditors have written off as “uncollectable,” but that doesn’t mean that a debt collection agency won’t try to collect. After all, they have everything to gain and nothing to lose. You should know, though, that many states have laws saying that a debt is no longer collectible after a certain number of years. This is called the statute of limitations. Debt collection agencies count on most consumers being unaware of the statute of limitations, and go ahead and try to collect anyway. Unfortunately, more often than not, people get tricked into paying up.

If the documentation you receive lists a creditor other than the original creditor (such as a case where a debt collection agency purchased liquidated bad debt), you have the right to ask for the name and address of the original creditor – providing you do so within that 30-day window. That’s why it’s critical to review the paperwork when it comes in the mail. You don’t want to miss the window of opportunity you have to dispute the debt.

Validating the debt is an important first step in fighting debt collectors. If you don’t feel you can do it alone, by all means contact a fair debt attorney. It should be free, and having an advocate by your side can mean the difference between sleepless nights and peace of mind.

[thanks to jay tamboli and legal andrew via cc]