In another affront to its core audience, the RIAA has decided that it wants to try and crack the ten most famous lawsuits of 2007 list by suing people who have copied legally purchased songs for personal use. Today, as the Patriots rest from a so-far perfect season and the Cowboys are beginning to question whether they can win the NFC, the Drudge Report has given me a much more interesting thing to write about: Recording industry says illegal to transfer music from CD onto computer.... Naturally, I clicked on this one. See Download Uproar: Record Industry Goes After Personal Use.
In the article, the Washington Post has reported that the quote-unquote music industry is trying yet again to salvage their precious non-digital market by now arguing that one's personal use does not extend beyond simply listening to a purchased CD (which, let's be honest, nobody really does anymore). Now, I'm all for copyright protection, but this is just beyond ridiculous, at least as the article portrays this new legal position.
I can only hope this nonsense ruffles some intellectual property feathers. Based on this tenable position, it's hard to say how far down the rabbit hole the music industry has fallen: "Copying a song you bought is 'a nice way of saying 'steals just one copy,'' says [Sony BMG's chief of litigation]." If it's a personal copy, and it's not being shared, two things: (1) how are you going to discover these alleged infractions and (2) how do you reconcile this position with the idea of buying a digital copy and burning a CD, which is perfectly legal? See also RIAA adds digital downloads to gold/platinum sales certification. Hello?! It's the same difference!
With some deference to published legal articles on this topic, the Post article infers, ever so slightly, that this goofy litigation strategy may be a way for the courts to re-examine the VCR case and its progeny. I think that's a little bit of a stretch, but anything is possible. How these new legal tactics will fit within the Betamax and Grokster spectrum remains to be seen. Personally, I will be following this one a little closer and hope that next year (or within a couple of years) I get a client that is being sued for making a personal digital copy of a music CD they have purchased. That, my friends, will be a fun case to work on.
Am I alone in thinking that there is no way that the music industry can win this one? By all means, point me out to something (beyond a dissenting opinion) that a personal copy falls beyond the scope of fair use. As Ross Perot once said, "I'm all ears."
Sunday, December 30, 2007
The RIAA forgets about fair use and decides that digital is the devil
Abortion, Equal Protection and When and If Raich and the Commerce Clause take abortion out of the scope of Congress's enumerated powers
Although I try to stay out of weighing in on such matters, there was a passage about Justice Ginsburg in The Nine that has got me thinking. Basically, Toobin writes that Ginsburg was selected in part because of how she approached the entire Roe debate from an equal protection standpoint. So, here's one way the abortion issue may play out.
Among other things, the U.S. Supreme Court decision in Gonzales v. Raich, 545 U.S. 1 (2005) suggests that the Commerce Clause power granted to the Congress is "breathtakingly expansive." While I will defer the intricacies of this case to the academics, Congress basically has the power to regulate anything dealing with "the production, distribution, and consumption of commodities." What Raich resolved (that Lopez and Morrison arguably did not) was the deference entitled to Congress in these matters. Under either the majority or Scalia's concurrence's view (under the Necessary & Proper Clause), the deference when the Commerce Clause is properly invoked by Congress is great.
The question, as suggested by Scalia in his concurrence in Gonzales v. Carhart, is whether abortion has anything to do with commodities such that it will fall within the scope of Congress's commerce power. Assuming when this gets resolved, the answer is no, the question becomes, I submit, whether, if given back to the states to decide, whether they can either. I think when this question arises, it's going to come down to interpreting how much the states' gave up in passing the 14th amendment.
Put another way, if Roe (and to some degree Casey) is overruled or further eroded or restricted, what happens next? Well, one possible outcome would be that Congress would try and ban abortions, probably under the commerce clause. Regardless of what power they try and pass it under, and assuming it passes, it's going to be challenged immediately. So, on the assumption that Raich will dictate whether or not abortions affect commerce (which seems unlikely), would that mean simply that the choice regarding this issue would then fall to the states? For the purposes of the rest of this argument, let's say Congress ultimately has no power to regulate this area and the states do. Now state A bans and adjacent state B does not. What constitutional issues remain and how will the media attempt to spin this issue?
I see two issues remaining that make it questionable as to whether a state can ban abortion, and regardless of how the courts settle the issue, these issues will extend beyond Roberts' tenure as CJ. Arguably, the practical effect of State A banning would require someone seeking an abortion to engage in interstate commerce such that they have to travel to State B. I'll set aside the impracticalities issues if State A is somewhere large like Montana and a poor citizen in the geographic center can't afford to travel out of state. I see this as a legislative debate issue that would be considered in passing the law in either State A or B, so I'll assume away the rational basis argument on this one. I will save my comments about State A citizens for when I am living in State A.
The stronger issue, as pointed out by Toobin in the book, is Justice Ginsburg's equal protection argument. Because I haven't really studied this area in any great detail beyond what I needed to know for the bar, I can't state whether or not this is a winning argument. Nor do I know whether this is already before the Court and my assumptions are incorrect. It does not matter, however. My point to this exposition isn't to express my position on whether it's Congress's or the State's power, if either can do anything in this particular area beyond what is already done, or where I think the issues shake out. It's only to spark some thought into the debate, based on where I think the state of the law is shifting.
Because I'm probably overlooking something and am otherwise unable to make an informed decision, I'll be happy to debate the issue a little more and research more about it if someone wants to provide cites to relevant law review articles expressing the sides of this equal protection debate. The bottom line is that I think this entire debated area is going to shift into equal protection land and perhaps create a better way to reexamine the Civil Rights Cases. Whether it actually plays out this way or not remains to be seen. In either case, it's an interesting time for constitutional scholars and the law clerks working on related cases. Maybe one of them will chime in on it (although doubtful).
Thursday, December 27, 2007
Calling the Clerk who worked on the Sean Connery lawsuit
Unfortunately, this sort of thing hasn't made it to my desk yet, and I doubt it will. Nonetheless, it's pretty entertaining: Judge to Sean Connery, Neighbors: Stop Suing. And, if all you're looking for is the court opinion (dated December 7, 2007, by the way and the news story just broke today, so take that for what it's worth): Sultan v. Connery.
For those of you not knowledgeable about the appellate system in New York, the "Supreme" Court is a trial court and not a court of appeals (unlike most other states where the "Supreme Court" is the highest appellate court).
Basically, Sir Connery and his neighbors are a modern day Hatfield and McCoy when it comes to getting along. After a series of legal jabs at each other, a judge has finally stepped in to say that enough is enough. See Connery Battling Neighbor in Court (providing multiple links). See also Sir Sean Billed as 'Fat Old Man' and a 'Bond Villain' in Lawsuit. The opinion speaks for itself, and is short enough to read on your lunch break.
I will refrain from weighing in on it; however, I will say that a multitude of quotes came to mind when I saw this article. Most of them came from SNL Celebrity Jeopardy skits and Seinfeld episodes.
Links to the best two celebrity jeopardy episode transcripts are here and here. Other quotes from Jackie Chiles may also be moderately in this same vein of humor.
Wednesday, December 26, 2007
Some thoughts for 2008
As is often the case at the end of a year, one contemplates the past and looks toward the future. These "looks" are better known as "resolutions."
Since my main goal in 2007 was to pass the bar (and in 2005 and 2006 to put myself in a position to pass), I can now look toward 2008 to make new goals. I think the main one is to prioritize things differently. For the past three years, most of my free time has been spent working toward the bar exam and landing as high up as I can on the so-called "lawyer totem pole." Between this clerkship, my post-clerkship job, and soon being able to afford to pay off this massive law school debt much sooner than later, I think I landed just fine. So, given that these priorities were self-centered (sort of), I can now shift my priorities toward more important things, like planning a vacation to Europe or buying a house.
I realize how arrogant this may come across, and I certainly don't intend it this way. Plenty of my law school friends had much different priorities and were able to balance many more complex issues than my simple and mundane ones. But since I didn't have to balance important things such as a wife or kids or a job or whatever (other than my work and school, really), these priorities tended to fall by the wayside. Not anymore past 2007. Because most of my career and professional goals are in order, it's time to create more personal ones. Hence, I have decided to give this online dating concept another shot. After all, it seems that all the other people I meet nowadays are other lawyers, and those conversations can sometimes leave a lot to be desired in terms of variety.
As I wrote about once before, I made some marginal effort at online dating with poor results. And, granted, I probably handicapped myself because most of the time I had some test or paper or law review crap to work on. And, as a matter of priority to achieve certain goals, those types of things had to come first. And now they can fall a distant eighth or ninth (if not lower).
So, I think I'm going to spend some of my free time going on a series of first dates (which, hopefully aren't all bad). While I may eventually write up my thoughts on this issue, I don't exactly want my blog to turn into some sort of dating review, nor would I want to write something and have it misconstrued as mean spirited. (On that note, there is a blog that basically posted a bunch of fake ads to Craigslist to elicit funny responses, which he posted). However, if I find something noteworthy, I'm sure I will mention it if it's worth mentioning.
In addition to taking suggestions about the pros and cons of being a future lawyer tackling the online dating world, I'm also taking suggestions as to where I should go on my post-clerkship vacation. I've been to most of Europe, but obviously there is plenty left to see (or see again).
In the meantime, I'm going to read some briefs and watch some tv. Some more thoughts on the writers' strike, my current tv shows, etc. will be posted throughout this week.
Tuesday, December 25, 2007
Lost season 4 trailer, a nice present for the holidays
I saw that Lost Season 4 is definitely going to start on January 31, so I'm glad that my show hasn't fallen victim to the writer's strike. In either case, TV.com has the 2 minute trailer on their front page: TV.com & Extended Lost season-four trailer hits web.
Friday, December 21, 2007
Happy holidays (or winter interval as it is)
I get to spend a few days off from the crazy world of law, which will be good since I can hardly believe that I've already been working for almost four months. So, in the words of Krusty the Clown: "Have a Merry Christmas, a Happy Chanukah, a Krazy Kwanzaa, a Tip Top Tet, and a solemn, eventful Ramadan."
I'm sure my internet access will be intermittent between rounds of egg nog, but I may have a few more entries before '08 arrives. And if not, Iowa '08 is just around the corner, Hollywood is moving along in spite of the writer's strike (as I predicted), and I'm sure I'll be able to catch up with all my favorite tv shows. All told, I'm sure there remains plenty to write about.
Happy holidays!
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Tuesday, December 18, 2007
The separation of facts from reality
As I've alluded to several times (I think) over the past few months, I cannot discuss the substance of most of my work for the court (and obviously the merits of a case are out of the question). It's the nature of the profession I suppose. Because some of my work deals with criminal matters (as much of appellate work covers I would say), I find it much easier to think about facts in theory than in reality. Let me explain.
Take any criminal matter, or at least one that encompasses very disturbing facts. On paper, it's easy to equate law from previous cases and not really think about the nitty gritty. And, leaving the whole golden rule argument out of this discussion, I'm left to wonder (not much, but a little) how much of an impact court opinions have beyond the legal world. The facts are the same for both legal eagles and the average joe or jane, but obviously to the victim (or the defendant for that matter), they take on a much different context.
Put another way, in creating "law" so to speak, isn't there some inherent thought about the consequences of the words the court uses? I'm not talking about the legal sense per se, but more for the victims who (likely) never read these legal opinions. And the newspapers that report on them. I can't count how many times I've read an article that completely misses the point of an opinion, or adds in flowery language that really makes the court look biased. It's infuriating.
In the end, I'm probably making a little something about nothing. The non-lawyer's take on an issue (and to some degree, the court of public opinion) has only certain bearings on the profession. It's the public opinion when a potentially negative (or positive) case comes out, however, that has sparked this particular topic.
I remember during my first winter break from law school, I was at a party and my neighbor was complaining about the way that criminals can break into houses, get assaulted by the homeowner defending his or her property, and then can sue the homeowner for damages. I sort of remember this being an episode of Boston Legal, and obviously there are plenty of defenses that make it less likely that the criminal will win this one, but the fact that he thought this was the actual state of legal affairs bothered me. And in light of some of the cases I've been working on, I sometimes wonder whether the court (and to a certain extent, myself) am partly responsible for these misperceptions.
In the end, I can't let it bother me, and I must conclude that the court is not responsible (or if it is, a higher court will correct it). Nor can I put much stock into how the press attacks the US Supreme Court for being either too liberal or not liberal enough. All I can say is that I do the best I can and try and be as objective and persuasive as I can be, and hope whatever aspect of the law I am working on is presented as true to the spirit of the caselaw as it can be. And if it's bulletproof to a further appeal or motion, that's good too. If only the briefs were as objective and thought about this when presenting their version of facts.
Anyway, my thoughts on why both Journeyman and Heroes has dropped off of my television list will have to wait until later this week. On that note, if anyone from the major networks is willing to pay me what I'll be making next year in a big firm, I'll gladly work with a team of other law clerks on a comedy series that is sure to succeed on Tuesday or Thursday nights.
Monday, December 17, 2007
The bump to $180k
The firm of Williams & Connolly has bumped its first year associate pay to $180,000. This, obviously, is "well above market," as ATL reports. See Nationwide Pay Raise Watch: Williams & Connolly to $180k. See also Skaddenfreude's earlier report from March about last year's W&C bump. What I find more impressive with this (other than the raw number) is that the annual increase hovers around 7% a year, which is also above most of the other firms' annual 5% increases.
Granted, there is more to the bonus structure and all of that (which W&C purportedly does not pay), but the question I have to all of this (as I always do), is what kind of life outside law do they expect any associate to have? I think the answer to this, as would be expected, is none. But boy, I'm sure this will send chills up any firm's spine as they decide whether NY will now bump to $190k and the remaining markets will bump to $160k. Sort of makes you forget we're heading into murky economic waters, doesn't it?
I'm not going to W&C, but I'm sure any clerk that is has got to be happy about this. This memo must have been a nice present for some people, and probably a bigger headache for others.
Also, and I'm not going to chime in on anything else about bonuses except post a link to the answer to an earlier question I had about Wachtell's 100% bonus structure.
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Sunday, December 16, 2007
I am Legend review
I saw the new Will Smith movie, I am Legend. Overall it was pretty good, and considering that there aren't too many new shows on tv anymore for a little (or a long) while, and all that is otherwise out is kid's movies, this one is the one to see. A couple quick thoughts (including spoilers) follow.
The premise of the movie is that a manmade virus has killed most of the world's population and Will Smith, one of the scientists who had been working to stop it, was one of the 1/2 of 1% of the population with a natural immunity. The remainder who were partially immune turned into some sort of vampire-type creature. In the movie, he captures them on occasion to work on an antivirus.
My friend who watched the movie with me said that he thought it was great until about 15 minutes left in the movie, where it took a fairly drastic turn from the book. Nevertheless, he said, it was pretty good. After he explained what the book was about, I saw what he meant.
Since I don't want to ruin the movie or the book for those who haven't seen or read either, I'll simply say that this review of Richard Matheson's I am Legend book explains it fairly well. Why Hollywood is so adverse to realistic endings is beyond me. Didn't Interview With a Vampire prove otherwise? I can only hope that the DVD has the true, alternate ending.
Thursday, December 13, 2007
The Road Less Taken
One of my favorite poems is Robert Frost's The Road Not Taken. So, when I saw ATL's link about Sen. Barack Obama's decision to forgo the clerkship route for greener pastures, I thought it would make an interesting read. And it certainly does. See The Man That Got Away: Judges Dreamed of Having Barack Obama as their clerk. Why did he turn them all down?
Since I went the appeals route, and will be heading to a big firm next year, I sometimes wonder if this is the correct path or not. That, however, calls for a much longer entry and right now I simply do not have to the time to give it to the due diligence that it deserves. I did hear a story the other day of a similar choice made by another clerk years ago. Allegedly, this particular clerk had an offer from Skadden: New York and decided after a year of clerking that he was less enamored with the prospect of corporate law and decided to go work for the public defender's office. Good for this clerk.
Myself, I don't have that luxury for two reasons: one, I highly doubt I would be a public defender, and two, I think I am going to enjoy big firm life and big firm work. While this answer may be different five years from now, I can only hope that it's not. Nonetheless, being in a somewhat similar position (although not from Chicago), I can certainly respect not taking the lesser traveled path and forging through one's own. As Frost says, sometimes the road less traveled makes all the difference. The caveat, as Jerry Seinfeld put it, is that sometimes the road less traveled is less traveled for a reason. To each his (or her) own.
Tuesday, December 11, 2007
Greedy traders are worse than greedy associates
I saw that the stock market reacted fairly negatively to the rate cut. Everything is hunky dory and then, KABOOM. 
Obviously a lot of people are upset. But give me a break. MSN has this as their lead quote: "Stocks tumble as investors see the central bank's interest-rate trim to 4.25% as way too small, putting the economy in danger of recession." Isn't this sort of sell-off more consistent with a mob mentality than actual reason? Who wants to bet that tomorrow's going to close a hundred points higher?
I guess this is the sort of thing I'm going to have to deal with on a more personal level next year (or as I'm sorting through boxes of papers dealing with such tumbles' aftermath. Fun stuff.
Monday, December 10, 2007
Unbelievably busy days
Who would think December would be so hectic? In either case, my schedule is finally starting to settle down again and so I thought I would chime in on what I think is the most interesting internet/free speech/criminal law question around nowadays and that is this cyberspace myspace case in Missouri. The brief facts are that one girl (Megan Meier) pretended to be a boy named Josh, created a relationship with another girl who became devastated when "Josh" told her something that upset this girl, who then hung herself. I'm going to have to spend some more time thinking about this one, and I can't imagine this bizarro fact pattern would show up on the east coast, but the case certainly could represent an interesting intersection of free speech and criminal liability. I would imagine the national press this case has already gotten will spurn some great commentary from more educated free speech enthusiasts.
My thoughts, and they are really only limited to a couple of articles since I'm almost two weeks behind in my RSS feeder, is that free speech may not protect her on this one. Unlike being a pamphleteer shouting from his internet soapbox, this is much more targeted. Somehow I don't think the framers had this sort of thing in mind in protecting speech. But I guess that will be up to either the Missouri courts or some Missouri district court to decide. Should be interesting.
I will save my comments about the recent Supreme Court crack/powder cocaine case after I've read more about it. Since my clerkship doesn't have too much to do with sentencing, I'm not sure how much my ivory tower opinion would matter on this one.
I'm also thinking of taking another bar or at least exploring other parts of the east coast. More on that after I investigate this whole reciprocity idea.
