Copyright Office Issues New Report on Orphan Works and Mass Digitization Projects

The U.S. Copyright Office has issued a new report, Orphan Works And Mass Digitization, which identifies legislative proposals and other considerations to create mechanisms that allow for legal use of orphan works and mass digitization.  The report builds on earlier examinations of the issues released in 2006 and 2011.

From the Executive Summary:

While the fundamental aspects of orphan works and mass digitization have remained unchanged since the Office’s prior reviews, a number of important domestic and international developments have affected the legal landscape. In the United States, it is difficult to separate the issue of mass digitization from two lawsuits arising out of the Google Books project, in which authors and book publishers have asserted violations of their exclusive rights and Google and libraries have asserted fair use.4 Recent decisions in these cases have magnified the public debate surrounding the costs and benefits arising from digitization projects more generally, and how best to license, except, or otherwise regulate them under the law.

Meanwhile, a growing number of countries have adopted legislative responses to both orphan works and mass digitization, ranging from calibrated exceptions to government licenses to extended collective licensing. And, private entities have developed innovative new copyright information registries and other resources to more efficiently bring rightsholders together with those seeking to use their works.

These combined developments – all of which will have substantial ramifications for U.S. copyright stakeholders – strongly suggest that it is time to revisit potential solutions in the United States. The goal in doing so is not to interfere with jurisprudence, but rather to ensure that the rules are clear and that all parties are on equal footing. Indeed, with so many equities at stake, the complexity and breadth of the issues make them well suited for legislative action.5 While the Office has addressed these issues together in this Report, we recommend separate solutions.

The Copyright Office was opposed to the Google Book Settlement which was ultimately rejected by the trial court.  The current report (PDF) is available here.  Perhaps Congress will get around to actually making reforms in the copyright laws to account for orphan works and digitization projects.

Mark

Apple Loses Appeal In Ebook Case

The Second Circuit Court of Appeals rejected Apple’s arguments on appeal and upheld Judge Denise Cote’s finding that Apple violated the antitrust laws:

Defendants Apple, Macmillan, and Simon & Schuster appeal from a judgment of the United States District Court for the Southern District of New York (Cote, J.), entered on September 5, 2013. After a bench trial, the district court concluded that Apple violated § 1 of the Sherman Antitrust Act, 15 U.S.C. § 1 et seq., by orchestrating a conspiracy among five major publishing companies to raise the retail prices of digital books, known as “ebooks.” The court then issued an injunctive order, which, inter alia, prevents Apple from signing agreements with those five publishers that restrict its ability to set, alter, or reduce the price of ebooks, and requires Apple to apply the same terms and conditions to ebook applications sold on its devices as it does to other applications. We conclude that  the district court correctly decided that Apple orchestrated a conspiracy among the publishers to raise ebook prices, that the conspiracy unreasonably restrained trade in violation of § 1 of the Sherman Act, and that the injunction is properly calibrated to protect the public from future anticompetitive harms. In addition, we reject the argument that the portion of the injunctive order preventing Apple from agreeing to restrict its pricing authority modifies Macmillan and Simon & Schuster’s consent decrees or should be judicially estopped. Accordingly, the judgment of the district court is AFFIRMED.

The main opinion was accompanied by an opinion concurring in part and dissenting in part, and a dissenting opinion.  Here are the opinions:

US v Apple Opinion US v Apple C&D In Part US v Apple D Opinion

Mark

Supreme Court Action: Patents, Fourth Amendment, Excessive Force Claims, and the Takings Clause

The Supreme Court issued four opinions this morning.  I’m guessing the same-sex marriage case and the Obamacare case will be decided on June 29th, which appears to be the last day of the term.  Today’s cases, while not having the social impact, are interesting nonetheless.

The first case is Kimble v. Marvel Entertainment LLC (13-720).  Kimble entered into a contract with Marvel (the pre-Disney owned Marvel) where Marvel would buy Kimble’s patent on a Spiderman for a lump sum and a 3% royalty on each toy sold.  Sometime near the end of the 20-year patent term Marvel’s spidey sense began to tingle and the company discovered the case of Brulotte v. Thys Co., 379 U.S. 29 (1964 ).  That case held that a patent holder could not charge royalties once the patent had expired.  Marvel sued for and won a declaratory judgment that royalty payments would cease once the patent expired.  The Ninth Circuit affirmed.

The Supreme Court upheld Brulotte and affirmed the lower court decisions on the basis of stare decisis.  The Court said that relief from the rule rests with Congress and not the Court.  It also suggested that the royalty contract could be structured in other ways to spread the payments beyond the expiration of the patent.  Justice Kagan delivered the opinion of the Court and was joined by Justices Scalia, Kennedy, Ginsburg, Breyer, and Sotomayor.  Justice Alito filed a dissenting opinion and was joined by Chief Justice Roberts and Justice Thomas.  The dissent argued that the Court made up the Brulotte rule when the case was decided (wrongly, in its view) and could just as easily get rid of it as there is nothing in the patent laws that direct that result.

The second case is Los Angeles v. Patel (13-1175).  The City of Los Angeles has an ordinance that requires hotel operators to record specific detailed information about their guests.  The ordinance also requires that the records “shall be made available to any officer of the Los Angeles Police Department for inspection,” provided that “[w]henever possible, the inspection shall be conducted at a time and in a manner that minimizes any interference with the operation of the business.”  A group of motel owners sued on the basis that the statute was facially unconstitutional under the Fourth Amendment as it afforded no opportunity to challenge the inspection beforehand.  The District Court held for the City ruling that the owners had no privacy interest in the records.  The Ninth Circuit affirmed but then reversed en banc.

The Court held that a facial challenge to the ordinance can be made.  Even though the “search” in this case is administrative, it is still unconstitutional as it does not allow pre-compliance review before a neutral party.  Justice Sotomayor delivered the opinion of the Court and was joined by Justices Kennedy, Ginsburg, Breyer, and Kagan.  Justice Scalia filed a dissenting opinion and was joined by Chief Justice Roberts, and Justice Thomas.  Justice Alito filed a dissenting opinion and was joined by Justice Thomas.  The dissents argue essentially that the challenge should fail as the Court decides whether the application of a law is unconstitutional rather than the text of the law in and of itself.

The third case is Kingsley v. Hendrickson (13-6368).  Kingsley was a prisoner awaiting trial when he became uncooperative in his cell.  On one occasion he refused an order to leave his cell and was forcibly removed.  He was handcuffed and stunned with a Taser.  He also alleged officers slammed his head into a concrete bunk.  He filed a §1983 suit.  The trial court issued jury instructions calling for a subjective standard to decide liability.  The jury found for the officers.  The Seventh Circuit affirmed in a divided panel.

The Supreme Court reversed holding that the correct standard was an objective unreasonableness standard in deciding an excessive force claim.  The Court stated that it was consistent with precedent, it is the standard in the pattern jury instructions, officers are trained to a standard, and based on circumstances, the officers may be justified in their actions and given some form of immunity.  Justice Breyer delivered the opinion of the Court and was joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan.  Justice Scalia filed a dissenting opinion and was joined by Chief Justice Roberts, and Justice Thomas.  Justice Alito filed a separate dissent. Justice Scalia argues that “any intentional application of force that is objectively unreasonable in degree is a use of excessive force that “amount[s] to punishment.””  Justice Alito would dismiss the appeal as other questions need to be answered in the case first.

The fourth case has been to the Court before on procedural issues over jurisdiction.  The Court today decides the substantive issue in the case of Horne v. Department of Agriculture (14-275).  The Agricultural Marketing Agreement Act of 1937 lets the Secretary of Agriculture create marketing orders to maintain stable markets.  Horne and his family grow raisins and acts as a handler for other growers by buying their crop and marketing them.  The marketing order establishes the Raisin Administrative Committee.  The Committee imposes a 47% reserve allowing that portion of the crop to be given to the government to sell in noncompetitive markets, give away, or otherwise dispose of.  Any profits after expenses are returned to the grower.

Horne refused to turn over raisins to the government.  He was fined the fair market value of the withheld crop and other civil penalties.  He ultimately sued the government alleging that the program violates the Takings Clause of the Fifth Amendment.  The Ninth Circuit ruled that this was not a per se taking as personal property is afforded less protection than real property.  That court also stated that the Hornes could avoid the problem by growing different crops.

The Supreme Court reversed. The Fifth Amendment applies equally to personal property as to real property, requiring just compensation from the government.  The history of the Fifth Amendment justifies this.  The Committee’s taking of the 47% of the crop is clearly a taking and the net profits are not just compensation.  The Hornes are not required to pay the fine and then seek its return in other proceedings.  Chief Justice Roberts delivered the opinion of the Court and was joined by Justices Scalia, Kennedy, Thomas, and Alito.  Justices Ginsburg, Breyer, and Kagan joined the opinion as to Parts I and II.  Justice Thomas filed a concurring opinion.  Justice Breyer filed an opinion concurring in part and dissenting in part and was joined by Justices Ginsburg and Kagan.  Justice Sotomayor filed a dissenting opinion.  Justice Breyer would remand the case to determine if any money was due to the Hornes after the accounting.  Justice Sotomayor argues that precedent relied on by the Court does not make the circumstances a per se taking.

Mark

Friday Fun: The Chicago Blackhawks

I recognize that some, especially those in Florida, may not consider this week’s Friday Fun to be fun at all.  It is for me.  As someone who has probably been to more Chicago Blackhawks games than any other form of public entertainment, I give you the 2015 Stanley Cup Champion Blackhawks singing We Are The Champions shortly after winning the Cup last Monday night at the United Center.  No one will confuse the team with a quality choral group.  It doesn’t matter though.  We won the Cup.  Enjoy.

Mark

Supreme Court Action: License Plates and a Host of Others

The Supreme Court issued six opinions yesterday.  The most controversial is the Texas specialty license plate case, Walker v. Texas Div., Sons of Confederate Veterans, Inc. (14-144).  The facts are straightforward.  The Sons of Confederate Veterans applied for a vanity plate that featured the organization and included a confederate flag.  A Google image search of [sons of confederate veterans license plate] will bring up ample amounts of results showing the design.  It is also appended to the end of the majority opinion.  Interestingly, it appears that other states have issued plates with the design.  Texas, however, said no to the confederate flag.  The SCV naturally sued.  The federal district court upheld the denial and the Fifth Circuit reversed.

The issue concerned whether plate design was government speech or private speech.  If it was the former, Texas had the right to control its own governmental message appearing on its license plates.  If it was private speech, the First Amendment would prohibit government from censoring the message.  The majority ruled that Texas had the right to refuse the design as it was characterized as government speech.  The Court based this holding mostly on the prior case of Pleasant Grove City v. Summum, 555 U. S. 460 (2009).  In Summum, the Court rejected a private organization’s attempt to place a religious monument in a city park where other privately erected monuments already existed on the basis that the government could control its own message.  The nature of the park did not turn it into a private forum.  The Court analogized the park setting with that of vanity license plates.

The Court’s opinion was delivered by Justice Breyer and he was joined by Justices Thomas, Ginsburg, Sotomayor, and Kagan.  Justice Alito filed a dissenting opinion and was joined by Chief Justice Roberts, and Justices Scalia and Kennedy.  The dissent argues that the Summum case is distinguishable and that the majority passes off government speech with private speech.

The other cases involve subjecting the mentally handicapped to the death penalty, Brumfield v. Cain (13-1433, (the defendant has a right to prove he is mentally handicapped); introduction of statements made earlier by a 3-year old child about abuse does not violate the confrontation clause, Ohio v. Clark (13-1352); whether the state has to prove intent and knowledge when a defendant is charged with selling drug analogues appearing on schedules from the Controlled Substances Act (it does), McFadden v. United States (14-387); and whether a church can be fined for not removing temporary directional signs in time limits contained in its sign code (it can’t in that the applicable code was not content neutral), Reed v. Town of Gilbert (13-502).

Mark

Study: Academic Publishers Rake In The Dough

There is an interesting article from the CBC called Academic publishers reap huge profits as libraries go broke.  The sub-title is “5 companies publish more than 70 per cent of research papers, study finds.”  There is a constant cry from academic libraries in the United States, and I assume Canada, over the cost increases in scientific, medical, and social science journals.  Harvard University in fact joined that chorus three years ago in encouraging its scholars to publish in open source publications.  Academic libraries in some situations dropped Elsevier subscriptions in protest.  Others joined in as well.

The CBC article documents a study of publishers by Vincent Larivière and others from the University of Montreal’s School of Library and Information Science.  He found that the top five journal publishers held 53% of the academic journal market and had a 40% profit margin.  This sentence explains why that is possible.

“The quality control is free, the raw material is free, and then you charge very, very high amounts – of course you come up with very high profit margins.”

Indeed.  There is a link to the full paper within the article.  Here’s the abstract:

The consolidation of the scientific publishing industry has been the topic of much debate within and outside the scientific community, especially in relation to major publishers’ high profit margins. However, the share of scientific output published in the journals of these major publishers, as well as its evolution over time and across various disciplines, has not yet been analyzed. This paper provides such analysis, based on 45 million documents indexed in the Web of Science over the period 1973-2013. It shows that in both natural and medical sciences (NMS) and social sciences and humanities (SSH), Reed-Elsevier, Wiley-Blackwell, Springer, and Taylor & Francis increased their share of the published output, especially since the advent of the digital era (mid-1990s). Combined, the top five most prolific publishers account for more than 50% of all papers published in 2013. Disciplines of the social sciences have the highest level of concentration (70% of papers from the top five publishers), while the humanities have remained relatively independent (20% from top five publishers). NMS disciplines are in between, mainly because of the strength of their scientific societies, such as the ACS in chemistry or APS in physics. The paper also examines the migration of journals between small and big publishing houses and explores the effect of publisher change on citation impact. It concludes with a discussion on the economics of scholarly publishing.

It’s published in PLOS ONE, which is an open source journal.

Mark

Print Isn’t Dying, It’s Just Shrinking

There is an interesting discussion going on at my library.  As others may be doing, we are considering the proper mix between print and online resources.  ABA law school accreditation Standard 606 now allows for “a core collection of essential materials through ownership or reliable access.”  It’s that last part, “reliable access,” that triggers deep soul searching of what to buy in print or what to buy as an electronic subscription.  Tempering the rule are other qualifications that state the core collection should support faculty scholarship and the curriculum, and that a collection that consists of a single format may violate Standard 606.

In this context I’ve recommended that we drop the National Reporter System, ALRs, CJS, multiple state codes, and selected treatises that are online.  This may sound radical to some.  I know that law schools and libraries are experiencing budget cuts due to lower enrollment.  That drives part of the analysis.  Another factor that bears thought is what we teach these days.  The legal writing program at DePaul started teaching all electronic research.  We experienced a drop in library visits as a consequence.  No more treasure hunts, no answering the same questions over and over at the reference desk.

I can remember how far we’ve come in electronic access.  We used to teach print resources because that’s what the legal market had out there.  Now electronic access to case law and other primary sources is ubiquitous.  At one time it was viable to teach print because the databases were based on print.  Understand the organization of print and the online version would make more sense.  That’s not so true anymore.  Online database providers no longer think in terms of echoing print other than citation and star paging.  Certainly there was a time when case law on Westlaw was organized by reporter.  Not anymore.  It’s all jurisdictional, and that seems natural now compared to looking for a database containing the Northeastern Reporter.

Look at how citators have changed.  There was a time when Shepards online would be no more current than the latest print update.  Even the CD-ROM product mirrored print.  Now everything is dynamic.  I can’t imagine why anyone would want to subscribe to the print edition at this point.  We cancelled our print copies years ago. If anything was made easier by online access, Shepards, KeyCite, and citators in general are it.  They are more complete, can be filtered, and everything is spelled out instead of interpreting symbols attached to citations.

Then there are law reviews.  I have to say how much I like Hein Online when it comes to law reviews.  Everything back to day one is there in PDF format more or less.  We still get paper copies of law reviews but discard them once they appear on Hein.  No more binding these books for the collection.  Google Scholar works as a handy index to Hein content as well as other scholarly databases.

So now the next question is what is the proper mix for print and online?  I know that some libraries have already dropped major primary resources such as reporters.  In one sense, we are behind the curve on making that set of decisions.  Never in my career had I thought I would be part of this kind of decision.  Times change.  I find that I’m not very sentimental about physical materials that no one uses at my library.

Mark

ABA Publishing Releases Perry Mason Novels

When I was growing up (a long, long time ago) I would watch Perry Mason episodes on television.  That show, and E.G. Marshall starring in The Defenders, presented my first awareness of the legal process.  I have been called on by one faculty member who uses video clips in her presentations to locate Perry Mason segments where Perry thunders at a witness (“May I remind the witness that you are under oath!”) with facts derived from Paul Drake’s investigations.  The result more often than not brought a surprise confession from the witness or someone in the gallery.  District Attorney Hamilton Burger would, more often than not, sheepishly approach the bench and ask for some variation of dismissing the charges.  In these days of regulated discovery, even in criminal cases, I’m not so sure these courtroom encounters would pass legal muster.  They made for riveting entertainment nonetheless.  I often enjoyed searching for these clips as it was more entertaining than locating cases on certain aspects of employment discrimination.

Mason was created by author Erle Stanley Gardner and published the first of a long line of Mason novels in 1933 with The Case of The Velvet Claw.  Much to my surprise, the American Bar Association is rereleasing the first five Mason novels on Ankerwycke, its consumer imprint.  More information is available here.  I think I may go back and wander through some of the clips I’ve collected in the course of reference service.

Mark

Supreme Court Action: Recognition of A Foreign Sovereign and Executive Powers, and a Little Legal Research Lesson

The Supreme Court issued one opinion this morning.  That case, Zivotosky v. Kerry (13-628), resolves a long standing court battle on whether a U.S. passport issued to a citizen born in Jerusalem can state the country of birth as Israel.  The current administration, as well as every previous administration since the United States recognition of Israel in 1948, has declared that Jerusalem is not under the control of any one country.  The Foreign Affairs Manual requires that passports recording of birth location be consistent with administration policy.

Congress passed the Foreign Relations Authorization Act, Fiscal Year 2003 in 2002.  Section 214 of the Act is titled “United States Policy with Respect to Jerusalem as the Capital of Israel.”  Congress explicitly authorized passports to state the country of birth as Israel for those U.S. citizens born in Jerusalem.   Menachem Binyamin Zivotofsky was born in Jerusalem in 2002 and his parents requested his country of birth be listed as Jerusalem.  Consular officials declined the request, setting up the present suit.

There is a long history of this case proceeding up and down the federal court system.  The Supreme Court issued a procedural opinion in 2012 (Zivotofsky v. Clinton) ruling essentially that the federal courts could decide the question.  Three years later the Court rules on the substantive issue, stating that the Act is unconstitutional.  The rationale for this is an analysis of constitutional language,  historical practice, and past precedent touching on presidential power to conduct foreign relations.  The Court acknowledges that Congress can pass legislation that can regulate passports in some circumstances.  Congress, cannot, however, pass legislation that affects the power of the President to recognize (or not) foreign sovereigns.  This Act falls into that latter category.

What struck me most about the opinion is the number of historical secondary sources cited by the Court.  It’s almost a lesson in legal research.  Some of the sources include:

  • Restatement (Third) of Foreign Relations Law of the United States §203, Comment a, p. 84 (1986)
  •  2 M. Whiteman, Digest of International Law §1, p. 1 (1963)
  • 1 J. Moore, Digest of International Law §27, p. 73 (1906)
  • I. Brownlie, Principles of Public International Law 93 (7th ed. 2008) (Brownlie)
  • The Federalist No. 69, p. 420 (C. Rossiter ed. 1961)
  • E. de Vattel, The Law of Nations §78, p. 461 (1758) (J. Chitty ed. 1853)
  • 2 C. van Bynkershoek, On Questions of Public Law 156–157 (1737) (T. Frank ed. 1930)
  •  2 H. Grotius, On the Law of War and Peace 440–441 (1625) (F. Kelsey ed. 1925)
  • 3 J. Story, Commentaries on the Constitution of the United States §1560, p. 416 (1833)

There are more.  I point this out as someone who has taught Advanced Legal Research, emphasizing that researching international and constitutional law issues requires attention to historical literature.  There is more to interpretation than the latest hornbooks.    The Court’s opinion today validates that.  The Clerks did a marvelous job in working on this case.  I’ll leave the impact of today’s decision to the commentators in the new.

Justice Kennedy delivered the opinion of the Court and was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan.  Justice Breyer filed a concurring opinion.  Justice Thomas filed an opinion concurring in the judgment and dissenting in part.  That makes it 6-3.  Chief Justice Roberts filed a dissenting opinion and was joined by Justice Alito.  Justice Scalia filed a dissenting opinion and was joined by Chief Justice Roberts and Justice Alito.

Mark

Friday Fun: The Amazing World of Gumball

Gumball is a cartoon cat and the title character of the Amazing World of Gumball on Cartoon Network.  His “brother” is Darwin who was once a pet fish but managed to leave the bowl and grew legs.  His sister Anais is a rabbit, like her father Richard.  Nicole, Gumball’s mother, is also a cat.  Got that?  Good, as that is the beginning of a set of characters that consist of animated entities, puppets, and CGI/3D characters all mixed into 11 minute cartoons for kids and adults.  I watch it on a regular basis.  Mainstream actors such as Brian Blessed (playing Santa Clause)  and Sir Derek Jacobi (narrating an episode) have provided voices to the show.

The clip I’m posting here is particularly funny to me as I have a friend with whom I have an ongoing conversation about the differences, say, between Norwegian Death Metal and Doom Metal, among other sub-genres of the music.  Rocky, who is the bus driver and school janitor, here explains the differences in metal  to Gumball and a few of his friends.  It’s oddly accurate.  Enjoy.

Mark

What Do Legal Employers Want In Law School Graduates?

One of the many issues coursing through law schools these days is revising the curriculum to produce more practice-ready graduates.  This makes a school’s students more likely to be attractive to firms in that they would need less training on the job to be successful.  I attended a panel discussion several months back at the LexisNexis offices here in Chicago that featured librarians from large firms, small firms, and the federal courts.  The discussion centered on the expectations each of their respective organizations had for interns and new hires.

I found it pretty interesting as we in academics teach research from the perspective of skill and strategies without context.  We talk about being cost effective here in the law schools but sometimes I’m not sure our version of cost effective is the same as that as a firm or legal practice.  One would think that a firm would like to keep costs down as much as possible while at the same time getting the research right. That may be true generally, but the approaches the librarians discussed varied depending on the research topic and the available resources.  The point really is that a student/graduate versed in online legal research should ask how research is conducted at the firm in order to use learned research skills effectively.

One of the other things that came up in the discussion was security.  That’s something I admit I never really thought about.  I’m used to seeing email messages with the standard disclaimer to the effect “this communication is intended for ….”  Client privacy, after all, is an ethical issue.  Those same issues come up in research where graduates find that they are restricted in where and when research is conducted.  I’m sure firm librarians reading this will say “Yes, and?”  It may be a shock to students to learn that firms and courts lock down information with prohibitions against thumb drives containing confidential information and other electronic devices that do the same.  Remote access to a firm’s system is definitely not as casual as logging into a law library’s database list.  Or putting it another way, there is a big difference between what is possible and what a firm allows and how it allows it.

With all of that, there is a recent study funded by Lexis that measured some of the expectations of some 300 hundred hiring partners for so-called practice ready graduates.  Here is the executive summary with links to the full report:

Executive Summary

Law Schools and individual faculty are in the process of revising their curriculum and classes to address the demand for more practice-ready graduates. But what are the most desired research, writing and transactional skills and how can law schools develop these skills most effectively? An independent survey was conducted by 5 Square Research, Inc. and funded by LexisNexis®, to answer these questions and more.

The result is a new white paper, Hiring partners reveal new attorney readiness for real world practice, which shares the responses of 300 hiring partners and associates from small to large law firms practicing in litigation and transactional law.

Key findings include:

  • 96% believe that newly graduated law students lack practical skills related to litigation and transactional practice.
  • 66% deem writing and drafting skills highly important with emphasis on motions, briefs and pleadings
  • Newer attorneys spend 40% – 60% of their time conducting legal research
  • 88% of hiring partners think proficiency using “paid for” research services is highly important
  • Students lack advanced legal research skills in the areas of statutory law, regulations, legislation and more…
  • The most important transactional skills include business and financial concepts, due diligence, drafting contracts and more…
  • A law firm spends approximately $19,000 per year, on average, to train a new associate

This study reveals the most important and most lacking practical skills desired by legal employers and will help inform law schools of the specific content and tasks they can integrate into applicable classes and experiential learning programs pursuant to employer demand and the new ABA standards.

Read the full article with charts, Hiring partners reveal new attorney readiness for real world practice, or view this Executive Overview Prezi*.

*Chrome or Firefox is best for viewing Prezi

Mark

Supreme Court Action: Limitations Period for Filing Claims Under the False Claims Act

The Supreme Court issued three opinions this morning.  I’m writing about one of them today because I’m suffering from the dreaded “first day back at work after a three day holiday blues;” that and an unexpected dental appointment this morning to fix a broken tooth.  The cases cover bankruptcy (Wellness Int’l Network, Ltd. v. Sharif (13-935)), patents (Commil USA, LLC v. Cisco Systems, Inc. (13-896)), and when qui tam suits under the Federal Claims Act (FCA) may or may not be barred by a limitations provision (Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter (12-1497)).

Carter was an employee of a government contractor who provided water purification services to the government in Iraq.  The contractor, Carter claims, billed the government for services that were either performed improperly or not performed at all.  The FCA has two provisions at issue here.  One is a “first-to-file” provision that bars subsequent suits that involve the same facts or incidents.  The other is the FCA’s statute of limitations provision requiring a qui tam action must be brought within six years of a violation or within three years of the date by which the United States should have known about a violation.  There is a 10 year limitation against suits in any event.

Carter brought suit within the time allowed but was dismissed in 2010 because there was a pending suit (Thorpe) in another court on the same issue.  The court dismissed Carter’s suit without prejudice.  Carter filed a second suit when Thorpe was dismissed for failure to prosecute.  That suit was also dismissed because Carter’s appeal of the first dismissal was pending.  Carter dismissed the appeal and filed a third suit.  The district court dismissed that third suit, this time with prejudice, on the grounds that two other cases, one in Texas and one in Maryland, had already been initiated on the same facts.  The district court also ruled that the Wartime Suspension of Limitations Act (WSLA), which suspends the Statute of Limitations for “any offense” involving fraud against the federal government, only applies to criminal cases and not Carter’s civil case.  Only one of Carter’s claims would survive the limitations clause

Carter appealed the dismissal and the Fourth Circuit held that the dismissal of the pending cases from Texas and Maryland removed the first-to-file impediment.  It also ruled that the WSLA applied to civil as well as criminal cases.  The contractors appealed to the U.S. Supreme Court.

The Court spent the bulk of the opinion on the applicability of the WSLA to Carter’s case and concluded that the language, structure, and history of the statute limited it to criminal cases.  The Court then resolved the question of whether Carter’s third complaint should be dismissed with prejudice given that at least one claim would survive.  The Court agreed with the Fourth Circuit that when previous cases are dismissed without resolution that the first-to-file bar ceases.

Mark

Friday Fun: Teen Titans Go!

It’s not much of a secret that I like animation.  I doubt that I could live without the Cartoon Network as part of my TV package.  One of the shows that’s been on for a few years is Teen Titans Go!  It’s a comedic take off of an earlier, more serious version of the Titans.  The main characters are Robin, from Batman and Robin fame; Beast Boy, who can transform into different animals; Starfire, an alien princess from the planet Tamaran; Raven, an inter-dimensional entity fathered by the evil demon Trigon; and Cyborg, half human and half robot.  More on the show and the characters is available from the Teen Titans Wiki.  The clip below is taken from the episode Serious Business.  It’s a musical representation of what happens when one urgently needs a bathroom and it is not available.  I’ve been there.  Now I find myself quietly singing the “pee pee dance” when that happens.  Knock knock.

Mark

Supreme Court Action: The Rest of the Decisions from Last Monday

I never had a chance to write about the other cases the Supreme Court issued on Monday.  Here are short summaries of the points decided.  The case of Henderson v. United States (13-1487) presented the question as to whether a convicted felon could transfer his guns to a third party as §922(g) prevents a felon from possessing firearms.  Henderson wanted to give his guns to a friend.  The government opposed the idea.  The Supreme Court held that the statute does not prohibit the transfer provided the court below was satisfied that the transfer was not a sham.  Justice Kagan delivered the opinion for a unanimous Court.

Coleman v. Tollefson (13-1333) concerned the ability of prisoners to file lawsuits in forma pauperis.  The relevant statute limits a court to grant the status to a prisoner who has filed three prior actions that were ultimately dismissed as frivolous. , malicious, or fails to state a claim upon which relief may be granted.  Coleman filed three suits that were dismissed as frivolous.  He filed four more suits while the third dismissal was on appeal.  The lower courts denied him in forma pauperis status.  Coleman argued that the case on appeal shouldn’t count.  The Supreme Court disagreed stating essentially that the statute governs the action of a single court rather than as a sequence of events.  Justice Breyer delivered the opinion for a unanimous court.

The case of Comptroller of Treasury of MD v. Wynne (13-485) presented the issue of how states can account for tax credits against taxes paid to other states.  Maryland allowed tax credits for tax payments made to other states against its state income tax but not for a county tax which the state also levied.  The state issued a deficiency notice against Wynne when he claimed credits against both.  The lower Maryland courts held the tax scheme violated the dormant Commerce Clause as it burdened interstate commerce.  The state’s tax scheme did not pass the internal consistency test which assumes that every state has the same tax structure.  If every state adopted Maryland’s structure, interstate commerce would be taxed higher than intrastate commerce.  The words “dormant Commerce Clause” suggest all kinds of internal interpretive disputes in the Court which is reflected in the vote.  Justice Alito delivered the opinion of the Court and was joined by Chief Justice Roberts and Justices Kennedy, Breyer, and Sotomayor.  Justice Scalia filed a dissenting opinion and was joined by Justice Thomas as to Parts I and II.  Justice Thomas filed a dissenting opinion and was joined by Justice Scalia except as to the first paragraph.  Justice Ginsburg filed a dissenting opinion and was joined by Justices Scalia and Kagan.

The next case is Tibbles v. Edison Int’l (13-550).  This case involves a breach of fiduciary duty claim under ERISA, but the real issue is whether the limitation period for filing a claim (six years) barred the suit.  The claim is that plan trustees added mutual funds to the plan in 1999 and 2002 when there were materially identical plans available at a lower cost.  The case was filed more than six years after the funds were added to the plan.  The Court held that trustees have an ongoing duty to remove imprudent trust investments.  As long as the claim alleges a violation of that ongoing duty, the claim is timely.  Justice Breyer delivered the opinion for a unanimous Court.

The last case from Monday is Harris v. Viegelahn (14-400).  There are two options for filing individual bankruptcy, Chapters 7 and 13.  The difference is that under Chapter 7 a debtor’s assets are transferred to a bankruptcy estate and promptly liquidated for distribution to creditors.  This does not include wages earned after the petition is filed.  Chapter 13 allows a debtor to retain assets and develop a plan to pay off creditors from future wages, among other assets.  Harris owed money to multiple creditors and some $3,700 to Chase Bank as arears on his home mortgage.  Chase filed a Chapter 13 petition.  Harris was obligated under the plan to resume mortgage payments of $530 per month which were withheld from his wages and given to Viegelahn, the bankruptcy trustee.  Harris fell behind and Chase foreclosed.  Viegelahn still received the $530 per month without making any payments to Chase.  Harris converted his Chapter 13 plan to Chapter 7 a year later.  Viegelahn then distributed money to creditors including funds from Harris’ wages.  Harris petitioned to get that money back.  The Fifth Circuit held that Harris was not entitled to a refund.  The Supreme Court reversed, holding that bankruptcy law limits the Chapter 7 estate to property on hand at the time of the initial filing.  Justice Ginsburg delivered the opinion for a unanimous Court.

Mark

Google Scholar Case Law Evolves

I came across an interesting feature in the case law portion of Google Scholar.  A non-law student asked me for help in locating three cases that she couldn’t find through LexisNexis Academic.  She explained that she also tried using Google Scholar.  I expanded the information about each by doing a few web searches as well as to verify the accuracy of the case names she gave me.  Two of the three were ultimately available through LNA.  The third was not.

I searched Scholar with the information I had located about the case and found an opinion with the right caption.  I opened the document and noticed that the docket number was a hyperlink.  I clicked on it and discovered that there were actually seven opinions issued in the case, at least at the federal District Court level.  I remember back when Google Scholar added the case law database that the engineers in charge said it would be easy to create a citator but that their contract with the “unnamed large legal publisher” that licensed the text prohibited that feature.  Somehow that didn’t stop Google from adding two features that form a quasi-citator.

One is the “How cited” link in the upper left corner of the page containing the full text of an opinion.  That gives links to other citing cases with snippets of text from those cases.  There is another option to see all cases that cite the source case.  The second feature is a series of links on the same page under the heading “Related documents.”  This is where links to the same case at a different appellate level may be found.  By hyperlinking the docket numbers, Google can now offer a quasi-history along with its quasi-citator.  The only thing missing and presumably barred by contract are the symbols (emojis?) identifying the quality of the citation.

The main feature of Google Scholar’s case law, of course, is finding cases related to a problem through keyword search.  The results were hit or miss back in 2009 when the database went public.  The case list showed relevant decisions but it seemed as if something was missing.  The trust factor wasn’t there.  I mention this because I tested Scholar last fall when I created scripts for teaching features and strategies available using Lexis Advance, WestlawNext, and Bloomberg Law.

The problem was set in New York State.  Essentially, an individual sued a landowner for injuries sustained while riding an all-terrain vehicle (ATV) on the owner’s property.  The searches were from the perspective of the owner under the theory of assumption of the risk.  I liked the problem because there is a New York statute that specifically exempts liability for injuries sustained in most but not all unauthorized access circumstances.  It gave the opportunity to show research elements such as case results, links to statutes, annotations under statutes, and how to find related headnotes.  All three databases brought up the same leading cases and straightforward navigation to the related research types on each system.

I tested the same keywords in Scholar and sure enough, it gave results featuring all of the same leading cases on the first page of citations as I had found in LA, WN, and BL.  Essentially, Google’s algorithm has improved tremendously since those early days.  Google is hardly a substitute for any of the commercial databases as it does not have the value-added features such as secondary sources and others.  At the same time, anyone searching Scholar’s case law database can do so with a good amount of confidence in my opinion.

Incidentally, anyone wishing to see the scripts I designed should contact me for copies.

Mark

Supreme Court Action: Qualified Immunity with a little ADA on the Side

It’s getting to that time of the year when the Supreme Court starts to issue opinions in droves.  The Court issued six opinions today.  The opinion that will likely generate the most news is City and County of San Francisco v. Sheehan (13-1412).  That case concerned two questions:  whether the Americans With Disabilities Act (ADA) applied to police arresting an individual suffering from a mental illness, and whether the officers involved in the incident were entitled to qualified immunity under the circumstances.

Here is a summary of the relevant facts.  More detail is in the opinion.  Theresa Sheehan lived in a group home for those with mental illnesses.  Her social worker in the building, Heath Hodge, attempted a well-being check.  He knocked on Sheehan’s door with no response from  her.  He then used his key to enter Sheehan’s room.  Sheehan sprung from her bed and yelled for Hodge to get out and threatening him with a knife.  Hodge left and called police for assistance.  Officers Holder and Reynolds responded.  They knocked on Sheehan’s door and announced themselves as police officers.  They received no response and proceeded to use Hodge’s key to enter the room.  Sheehan announced rather aggressively that she had a knife and threatened to kill both officers.  They retreated and called for backup.

Both officers re-entered the room rather than waiting for backup to arrive.  The Court notes that “they did not pause to consider whether Sheehan’s disability should be accommodated.”  Sheehan again threatened violence.  Officer Reynolds pepper-sprayed Sheehan and that was ineffective.  Officer Reynolds shot Sheehan twice.  A third officer from backup kicked the knife out of Sheehan’s hand.

Sheehan ultimately sued San Francisco under the ADA for not accommodating her disability.  She also sued Holder and Reynolds in their personal capacities for violating her Fourth Amendment rights.  The District Court held that the ADA did not apply to police in these circumstances and that Sheehan’s Fourth Amendment rights were not violated.  The Ninth Circuit vacated in part holding that it was up to a jury to determined whether the police should have accommodated Sheehan.  A jury could have also determined whether officers needlessly provoked Sheehan through the second confrontation.  As the Court stated:

The panel further found that it was clearly established that an officer cannot “forcibly enter the home of an armed, mentally ill subject who had been acting irrationally and had threatened anyone who entered when there was no objective need for immediate entry.”

San Francisco appealed to the Supreme Court.  The Court dismissed the grant of certiorari as to the question of whether the ADA “requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody.”  None of the parties actually argued the point with all assuming that the ADA did apply. San Francisco argued instead that Sheehan did not qualify for an accommodation under ADA regulations.  The Court was not happy with the change in strategy compared to the question it certified.

The second question about qualified immunity was decided in favor of the police, though that decision was not without controversy.  More on that in a moment.  The Court held that the police in this case did not violate a statutory or constitutional right clearly established at the time of the challenged conduct.  The Court agreed with the Ninth Circuit in the two entries did not violate any clearly established right or that the second entry would have violated any constitutional rights had Sheehan not been disabled.  The use of force under the circumstances was also reasonable.  This, however, did not end the issue:

The real question, then, is whether, despite these dangerous circumstances, the officers violated the Fourth Amendment when they decided to reopen Sheehan’s door rather than attempting to accommodate her disability. Here we come to another problem. San Francisco, whose attorneys represent Reynolds and Holder, devotes scant briefing to this question. Instead, San Francisco argues almost exclusively that even if it is assumed that there was a Fourth Amendment violation, the right was not clearly established. This Court, of course, could decide the constitutional question anyway. See Pearson v. Callahan, 555 U. S. 223, 242 (2009) (recognizing discretion). But because this question has not been adequately briefed, we decline to do so. See id., at 239. Rather, we simply decide whether the officers’ failure to accommodate Sheehan’s illness violated clearly established law. It did not.

The Court analyzed the precedent used by the Ninth Circuit and concluded that it did not justify a remand to a jury on the question of immunity.

Justice Scalia wrote an opinion concurring in part and dissenting in part.  He agreed that the Court was right to dismiss the certiorari on the first question as improvidently granted.  He stated that on that basis the Court should not have addressed the second question.  He stated:

[H]owever—before we considered and deliberated upon the second QP but after petitioners’ principal brief made clear that they would not address the Circuit conflict presented by the first QP—we had no more assurance that this question was decided incorrectly than we do for the thousands of other uncertworthy questions we refuse to hear each Term. Many of them have undoubtedly been decided wrongly, but we are not, and for well over a century have not been, a court of error correction.

Take that for what it is.  Justice Alito delivered the opinion of the Court and was joined by Chief Justice Roberts, and Justices Kennedy, Thomas, Ginsburg, and Sotomayor.  Justice Scalia filed the aforementioned  opinion concurring in part and dissenting in part and was joined by Justice Kagan.  Justice Breyer did not participate in the case.

I’ll write about the other cases tomorrow, and if time permits, some interesting features I discovered in Google Scholar’s  case law database.

Mark

Law School Crisis Getting Worse

News reports show that the law school enrollment crisis is starting to affect the viability of schools in a big way.  We’ve had the faculty/staff reduction stories for the past two years or so.  The next set of reports identified lower admissions to the schools.  The crisis there, of course, was whether to dilute numbers like LSAT scores and GPAs just to fill seats.  It’s all problematic as dilution tends to affect US News rankings negatively.  This, in turn, reflects on a school’s reputation which can affect application numbers.

Even as the application drop began several years ago pundits were predicting school closings and other dire reactions.  Let’s pause for a moment and take a look at the latest statistics:

As of 4/24/15, there are 317,748 fall 2015 applications submitted by 47,577 applicants. Applicants are down 2.5% and applications are down 4.6% from 2014.

Last year at this time, we had 90% of the preliminary final applicant count.

That’s about 232 applicants per accredited law school on average.  The volume of applications is 1550 per school, on average.  Nonetheless, successful (read qualified) applicants can only attend one law school.  The higher ranked schools get the benefit of those multiple applications.  That drives what happens to the middle and bottom schools.  There are only so many faculty and staff reductions a school can make before more desperate measures come into play.  Here are a few.

Consolidation

Hamline School of Law and the William Mitchell College of Law will become the Mitchell|Hamline School of Law with operations mostly on the Mitchell campus.  William Mitchel was ranked at 142 in a three-way tie and Hamline at 145 in a four-way tie.  The merger may reflect a better expense/revenue figure for the combined schools, but likely not their ranking.  The merger announcement was made in mid-February

The autonomous law schools at Rutgers Camden and Rutgers Newark are merging into a single law school.  Classes will be taught at both locations some 90 miles apart.  Rutgers-Camden was ranked 102 in a three-way tie and Rutgers-Newark was ranked 87 in a seven-way tie.  The merger is not with its own political ramifications as there was a failed (and highly unpopular) attempt to transfer the Camden school to Rowan University in 2010.  The merger announcement was made in mid-April.

Closing?

The most drastic reaction to the application crisis may hit the Charleston School of Law in South Carolina.  The Post and Courier is reporting on a potential sale of the for-profit school to InfiLaw which is owned by a private equity firm.  Questions remain whether the sale will gather the regulatory approvals that will allow the school to continue operating.  The alternatives are pretty ugly in any event.

And the Next One?

The latest school that’s in financial trouble is the University of Massachusetts School of Law.  The former Southern New England School of Law was absorbed by UMASS at Dartmouth in Dartmouth in 2010.  That move was not without controversy as there was a lot of opposition, most notably from private law schools in the state, over whether taxpayers should support the state in running what would beits only public law school.  The school was projected to be financially viable by 2014 with admissions doubling by 2017.  The figures reported by the Boston Globe [subscription] show that the school has an $3.8 million deficit with its incoming class slashed by a third to 72 students.  Projections show the deficit to widen next year.  The school is provisionally accredited by the ABA.

[Correction posted from $8.3 million to the true figure of $3.8 million.  I truly regret the error.]

Mark

Friday Fun: CSN in Chicago

It’s been quite a week here for me.  It’s warm here in Chicago, for a change.  We’re in the middle of exams here at the College of Law.  The professional librarians takes turns as proctors with my turn yesterday.  The Blackhawks are working their way through the Stanley Cup playoffs (go Hawks!).  And I was off Wednesday as I spent part of the day with a friend, culminating in seeing Crosby Stills Nash at the Chicago Theatre.  It was a great venue to see them.  The seating was comfortable and the acoustics were superb.  I’d seen other shows there, most notable Van Morrison several years ago.  The  first set started with a breezy version of Carry On.  I’ll say up front that for a band (the principles, at least) having been together for 45 years that they still have it vocally and as guitarists.

Stills’ voice was a bit rough at the beginning.  He explained later in the show that he made a mistake with the room thermostat and the resulting cold affected his voice.  No matter.  The harmonies were terrific with his voice getting stronger as the show progressed.  The song selection was a combination of older “hits” and a few new songs yet to be released as recordings.  Graham Nash said it best, that they play old songs but it’s the new songs that keep them from being the Eagles.  They did perform the song Chicago as the second number.  The crowd really got into it, singing along at various times. Some of the highlight songs included Almost Cut My Hair, Wooden Ships, Déjà vu, Our House, and rousing versions of For What It’s Worth and Love The One You’re With.

The band, which Stills called the best band they had ever worked with, was great.  It featured Shane Fontayne (guitar), Steve DiStanislao (drums), Kevin McCormick (bass), James Raymond (keyboards), and Todd Caldwell (organ).  The arrangements were all much updated from what appeared on the recordings and at the same time very familiar.  Stills in particular played blistering lead guitar on most all the songs.  I don’t know how many dates are left on the U.S. tour.  I think they are headed east at this point and ultimately for shows in Europe.  If anyone is a fan and has a chance to see them on the rest of the tour, do it.  You won’t be disappointed.

I hope to be back with more regular content on Monday.

Mark

Short Takes On The News: “Exceptional” Lawsuits, Denial of a Law License, and Law School Accreditation

Boy, I haven’t done one of these in quite some time.  Wandering down the Internet news can bring up some mighty unusual items where the law gets involved.  Take, for example, this story in Wonkette about one Sylvia Driskell from Auburn, Nebraska.  She has filed a handwritten complaint in the federal court for the District of Nebraska against all homosexuals on behalf of God and his Son, Jesus Christ.  The complaint alleges “sin.”

I expect the suit will be dismissed for any number of reasons including the inability to provide an address for service much like this earlier case from Nebraska where a state senator sued God to comment on the ability of court access by the public.  There is also the question of jurisdiction, to wit which federal law or rule can the plaintiff invoke that gets the case properly before the Court.

I’ve worked with a lot of public patrons/pro se litigants over the years.  They have ranged from, in my opinion, fairly competent to having no grasp on reality in regard to what is a justiciable issue.  I feel for the librarians, if any, who had to discuss the case with Driskell pre-filing.

In a somewhat related story, the Massachusetts Supreme Judicial Court denied a law license to one Randy Britton for a variety of reasons.  One is that he used a letter of recommendation that was part of a settlement agreement in a civil suit against the lawyer who wrote it.  The lawyer filed a criminal complaint against Britton which was later dismissed.  The letter was part of related civil actions.  The Court also found Britton failed to disclose other cases including one where he sued over a denial of a license for assault weapons.  He also had a “substantial history of initiating pro se legal actions, the majority of which have been unsuccessful, and some of which have resulted in sanctions or an order to pay restitution.”  Read more at the ABA Journal.

Finally, the new Indiana Tech Law School in Fort Wayne, Indiana, has not received accreditation in its second year of operation.  I’ve written before about the school, most of it wondering why it exists in the current academic climate.  If I remember correctly, it had to do with that part of Indiana being an underserved market with potential applicants going off to Michigan and Ohio for an education.  The story in the Fort Wayne News-Sentinel quotes school representatives as saying the school will make improvements to the program once it receives the inspection report.  Well, good luck to that.

Mark

Friday Fun: A Cat Story

Librarians tend to be fond of cats.  As the most recent example, during the break at the MichALL session I attending on April 17th I overheard more than one conversation where cats were discussed.  Years ago a friend of mine who graduated from the library program at the University of Illinois said that she expected to receive a kitten with her diploma.

I am personally fond of cats.  I have five, all rescues.  I jokingly tell people that I hope to buy a ranch in my retirement and raise about a hundred head of cat.  I’m not exactly off the mark in one respect.  I regularly feed strays that show up in my yard.  I even have a couple of large plastic dog houses filled with straw so that strays could have a place out of the cold and inclement weather.  I think of them as my personal public patrons.  This has been going on for the last 15 years or so.

I came home from work late on Tuesday and took a few cans of cat food to my back yard for the evening travelers when I heard a tiny “mew” coming from one of the dog houses.  I peered inside and much to my surprise was a calico mom cat and five kittens.  She obviously had them while I was away.  I’m including a picture so readers can see what I encountered.  It was taken on Wednesday night when they were essentially one day old.  I hope to find homes for them in about 10 weeks.  They should be ready about then.  In the meantime, enjoy the kitten picture.

20150429_180622e

 

Mark

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