Barely Legally

Confessions of a Moot Court Bailiff

No New Record is Good News

Yesterday, the results for the 2011 New York State Bar Exam were published. I thought this was kind of interesting, from the New York Law Journal:

Of the candidates who took the test for the first time and graduated from American Bar Association-accredited schools, 86.1 percent passed, an increase of 0.5 percent for the same group last year. The passing rate for first-time test takers who graduated from New York law schools, however, was 86.3 percent.

Of all the 11,182 candidates who took the July exam, 69.2 percent passed. Last year, 70 percent of the record-breaking 11,557 test takers passed, compared with 72 percent in 2009 and 74.7 percent in 2008.

The legal industry is undergoing a slight correction like a guy with a blood clot in his carotid is about to undergo a slight headache. There’s not as much legal work to do as during the hilariously bubblicious economy from 2003-2007; worse yet, computers can do the legal work better, faster, and cheaper than human lawyers. Even if the work stayed steady, we wouldn’t need so many lawyers. But of course it didn’t.

Over the summer, Economix, a New York Times blog, published a state-by-state look at the surplus of the American lawyer. It was pretty disheartening for us New York lawyers. In substantive part, Catherine Rampell wrote:

In 2009, 9,787 people passed the bar exam in New York. The analysts estimated, though, that New York would need only 2,100 new lawyers each year through 2015. That means that if New York keeps minting new lawyers apace, it will continue having an annual surplus of 7,687 lawyers.

Note that that annual surplus of Empire State esquires is the largest in the nation; it’s more than the next three states combined. Now, this year, only 9,600 folks passed the bar exam. See? We’re cutting down that surplus at the blistering pace of 78 lawyers a year. At this rate, we’ll be lawyer-neutral by the year 2108, or just in time for Slumdog Millionaire to hit public domain.

Which is worse? The inelasticity for the demand of a legal education in relation to the demand for lawyers’ services, or the obscene length of copyright?

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The New Old Red Menace

One of the leading candidates for the Republican nomination for the Presidential race in 2012 says China is developing nuclear capability.

Herman Cain on China:

[W]e already have superiority in terms of our military capability, and I plan to get away from making cutting our defense a priority and make investing in our military capability a priority, going back to my statement: peace through strength and clarity. So yes, they’re a military threat. They’ve indicated that they’re trying to develop nuclear capability, and they want to develop more aircraft carriers like we have. So yes, we have to consider them a military threat.”

Boy, I sure hope China never ends up with the bomb. Just think what that would do to the Eastern Hemisphere! Why, it’s as unthinkable as a Soviet Russia without Kruschev.

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False Markings: A Dead Cash Cow

I think I vaguely recall hearing about this in law school at some point, but I didn’t imagine that things like this actually happened.

To start from the beginning: someone formed an LLC specifically for the purpose of suing companies like Wham-O and Brooks Brothers. What did Wham-O do, you may ask? Well, in 1957, they patented the Frisbee under the name Flying Toy – one can only wonder what college students did before the invention of the Frisbee. The patent expired a short time later (intellectual property rights that don’t last for decades? How delightfully absurd!), but Wham-O apparently didn’t remove the patent numbers from its Frisbees. The machine that manufactured the Frisbee had the patent numbers engraved in it, which kept stamping patent numbers after the patents no longer protected the Frisbee.

No big whoop, right?

Well, yes whoop. It’s a federal crime to lie about the patent status of your product. For the record, I definitely learned that in law school. However, I didn’t realize that people would wander around toy stores and look up patent numbers on products to see if they expired. Then, a bizarre kind of reverse patent troll firm would file suit in federal court. There was an explosion in this practice after the Federal Circuit ruled that defendants of such a suit were liable for $500 per offense; e.g., per Frisbee sold. Since the 1960s? That fine would be somewhere between $500 million and ‘Oh My God We’re Bankrupt What the Fuck’.

This story has a happy ending, however. As part of the America Invents Act, cases like these can now only be filed by (1) the federal government, or (2) a private plaintiff alleging an actual competitive injury. Reverse Patent Troll Firms will have to hope the federal government crushes the bastard Wham-O Frisbee empire. Both parties agreed that the lawsuit was now moot, and the plaintiff has agreed to shut up and go away.

the litigation industry

This kind of nonsense reminds me of the mass copyright infringement litigation industry. A lawyer with more bills than money goes to an indie movie studio with more bills than money and says “hey, I heard you spent a lot of money making a bunch of movies nobody bought. What would you say if I could make your movie profitable with no effort of your own?”

The lawyer takes on the studio as a client, and searches The Pirate Bay for the titles of the studio’s films. Finding one that’s reasonably well-seeded, the lawyer gets the IP addresses of the peers of the swarm, and fires off a barrage of John Doe lawsuits. Neither the lawyer nor the studio have any intention of litigating to jury verdict; rather, they intend to eke out settlements from a few scared kids.

I’ve written about this practice before, when a lawsuit for the C-movie Nude Nuns with Big Guns went awry after the plaintiff accidentally forgot he no longer owned the movie.

Torrent-chasing is the ambulance chasing of the information age. You know, besides the actual ambulance chasing that gives lawyers a bad rap.

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Fed Uses Google Alerts; Society Crumbles

This is some of the shrillest hyperbole I’ve read in quite some time. No great surprise, then, it’s about the federal reserve board.

“The [proposed government program] must provide real-time monitoring of relevant conversations. It should provide sentiment analysis (positive, negative or neutral) around key conversational topics.” Why do they need to perform “sentiment analysis”? If someone is identified as being overly “negative” about the Fed, what will they do about it? “The [program] should provide an alerting mechanism that automatically sends out reports or notifications based a predefined trigger.” This sounds very much like the kind of “keyword” intelligence gathering systems that are currently in use by major governments around the globe. Very, very creepy stuff. Are you disturbed yet?

Yes. Clearly, when the Federal Reserve wants to know what conversations people are having about its policies and actions, the only logical conclusion to reach is that we have entered the Orwellian police state.

That, or the government, as part of its continuing effort to be more open, transparent, and responsive, has been using tools to participate in existing social networks for years. I mean, come on. What kind of purpose is served by getting all hysterical about things like this? Folks who work for the government are allowed to read your blog, too. They might even want to have a conversation with you.

If that’s some doubleunplusgood thoughtcrime, you might want to consider cutting back on your daily intake of caffeine.

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Protestors Kept at Bay

Susan Crawford, on the new legal challenge before the FCC; the commission will determine whether it’s okay for a city to shut down cell service to hinder civil protests. She writes:

At issue is the termination of cell-phone service by San Francisco’s Bay Area Rapid Transit system on Aug. 11. It acted to thwart a protest about a shooting of a passenger by BART police. A host of consumer advocates and digital civil-rights groups have filed an emergency petition, asking the FCC to step in.

As far as anyone knows, no government agency in the U.S. had cut off general-purpose communications before BART took this step. The question before the FCC is whether BART’s action violated the Telecommunications Act of 1996, which prohibits discontinuing or impairing service without due process.

The whole piece is great. Read the rest of it on Bloomberg’s site. It’s hard not to sound hyperbolic when describing measures taken by an Egyptian dictator and later adopted by an American city agency, but both BART and the San Francisco protestors claimed the Constitution favored their position. I suppose that’s one thing the Egyptian protestors didn’t have. That, and Guy Fawkes masks.

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Sponsored Tweet Crisis on Infinite Keywords

Note from Dominic: this post was written by my good friend Raphael Majma, who is also a lawyer. Locate him on the Twitter and thank him for the post.

Over the last few days, I’ve been keeping my eye on Twitter. No, not to do a vanity check up on my follower numbers, but to search for “Marvel,” “Iron Man,” and “Spider-Man.” When I search for a few Marvel Comics related keywords, a strange thing happens:

Something's not right here...

There are two things we have to understand: Promoted Tweets and Search terms as copyright infringement. Promoted Tweets start off like any other Tweet, except advertisers pay for them to gain better placement on a user’s Twitter page or in their search results. In the case of the latter, advertisers can purchase the rights to certain search terms. If this sounds familiar to you, then you’ve probably read Rescuecom v. Google.

Twitter and Google both allow users to search for information. In addition to the user’s search results, Google also provides ancillary “context-based” advertising. In simpler terms, the stuff on the side of your screen that you never click on. One of Rescuecom’s competitors bought ad space from Google that would direct people looking for “Rescuecom” to the competitor’s site. Even though it was attached to a “Sponsored Link” tag, Rescuecom argued this was misleading and filed suit against Google for allowing competitors to purchase trademarked keywords.

To know why Rescuecom made such a stink, you’ll need to know a little bit about trademark law. In the simplest possible terms, trademarks protect brands. These brands are given protection depending on a number of factors, including use of the brand in commerce. When a brand is improperly used by a competitor, which means a number of things including misleading the consumer base, the brand owner can file suit.

The court ultimately decided that Google’s use of Rescuecoms trademarked keywords was an improper use of a trademark in commerce. The court’s decision was based on the fact that Google used and sold the Rescuecom trademark as a part of their advertising services. It’s not that it appeared as a searchable term, it’s that the term was suggested to and sold to competitors.

So what does this mean for DC? It all depends on how you view Twitter. Twitter isn’t a search engine and doesn’t actively refer you to competitor products. In fact, as of writing this my most recent check of “Spider-Man” on Twitter brings this up:

DAMN IT PARKER

There’s no question in my mind that this constitutes a use in commerce. Spider-Man is pretty clearly trademarked by Marvel comics and DC is using that term to give their new comic initiative a boost. But does this mislead anyone? Is there a misappropriation when it leads to comments by Twitterers that offer no confusion outside of why on Earth someone would play Spider-Man 3?

In an interesting turn of events, as reported by the folks over at BleedingCool, Marvel has gotten in on the fun and has purportedly purchased DC related keywords on Youtube. You’ll have to see where the keywords showed up to believe it.

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