Courtney Minick

I’m a little behind on this, but in September of this year, the AOC announced revisions to the Federal Rules of Evidence in the form of “re-styling.” The Judicial Conference Advisory Committee on Evidence Rules explains:

“The revision is intended to make the Evidence Rules easier to read, and to clarify, simplify, and modernize them without altering their substantive meaning,” said Judge Robert L. Hinkle (N. D. Fla). “There will be no change at all in the meaning or application of any rule. A judge or lawyer would get the right result using either a restyled rule or the old version. However, we think the chance of misunderstanding the rule is much smaller using the restyled version.”

The process began in 2007, and was released for the 2012 version of the FRE. As part of the effort, “Term usage was standardized, and the use of ambiguous words, such as “shall,” minimized along with outdated or archaic terms, intensifiers, and redundant terms and cross references. Rule numbers and citations were preserved to minimize the effects on research, but subdivisions were rearranged in some rules for greater clarity and simplicity. But terms were retained that have acquired special status from years of case law interpretation.”

Our friends at CALI [Computer Assisted Legal Instruction] and Cornell LII have issued a series of helpful e-books for lawyers, law students, and anyone else who wants quick and free access to the Federal Rules. The Federal Rules of Evidence, Civil Procedure, and Criminal Procedure are available for free download on CALI’s site. The book’s are based on Cornell LII’s federal rules collection, and are current to December 2010. They include the Advisory Committee’s notes, a functioning Table of Contents, internal links and external links to the LII site. They are “DRM-free” which means you can read them on any device you choose.

This is a great free reference tool–download now!

I recently blogged about a roadblock in the Cameron Todd Willingham investigation; specifically, the Texas Attorney General’s Office issued an opinion that the examination was outside the scope of the Texas Forensic Science Commission’s investigative authority. Incendiary, a new documentary about the case, is opening across the United States. Incendiary chronicles the original investigation, trial and subsequent investigation by the Commission. It provides an extraordinary look into the Commission proceedings, the science and the defense attorney’s perspective.  It picks up where Frontline left off, going even deeper into this long and complicated investigation.

You know I love Halloween, right? Last year I wrote about selling haunted houses. This year it’s Halloween IP. We have two suits queued up in Dockets regarding trademark of Halloween Haunted House brands. It’s time for some trademark awesomeness: who owns the right to scary names?

First up with Happy Halloween, Inc. [seriously] v. Screams, LLC [no, seriously]. Both parties run haunted houses in Texas. According to the complaint, Happy Halloween, Inc. had hosted a website at screams.com for 14 years. Screams, LLC, filed an action to transfer that domain, alleging cyber-squatting and trademark violation. Screams LLC registered the mark “Screams” with the USPTO. The registration was filed on July 15, 1996, and its first use in commerce is listed as May 18, 1996. Happy Halloween registered the domain name screams.com on January 22, 1997, according to the complaint. So, while Screams was technically first, it’s sat on this for 14 years with no action  — laches, anyone? Happy Halloween claims that the term “screams” is a “generic term characteristic of the Halloween season.” It denies that it is cybersquatting, and considering the facts, that seems pretty clear.

An interesting copyright suit has come across the wires:  Astrolable, Inc. v. Arthur David Olson and Paul Eggert. The complaint alleges that Defendants infringed on the Plaintiff’s copyright assignment to historical time zone information with their Timezone (tz or zoneinfo) database. The Timezone database, also called the Olson Database, is a library of historical timezone information. It is intended primarily for use with computer systems, notably UNIX (from which Mac OS X is derived). That means that time zone information for computers running UNIX and Mac comes from this library, which is included in the operating system.

The tz database was originally compiled by Arthur David Olson at the NIH, and has been edited and maintained by Paul Eggert at UCLA. Olson and Eggert are the named defendants in this complaint. The database was housed on NIH servers until the complaint at issue was filed. ICANN has since taken over the database. This suit is important because UNIX systems rely on updates to the tzdatabase to run time zone information. The complaint was filed by Astrolabe, Inc., a company that sells astrology software. Astrolabe asserts that it is the copyright assignee for the ACS Atlas. It appears that the heart of the complaint is that defendants used ACS’ historical time zone data to populate the tz database.

Last week, Netflix announced some big changes in their structure and offerings. First, they will split into two companies: one for streaming and one for physical DVD rental. Second, Netflix subscribers will be able to share and discuss their rentals through Facebook. The Netflix blog reports: “The Netflix/Facebook integration empowers you as a Netflix member to share what you watch from Netflix with your friends on Facebook and to discover what your friends are watching both on Facebook and within the Netflix user interface. This makes it easier and more fun to find new television series and movies to watch.” Michael Drobac, Director of Government Relations at Netflix, has a caveat, however. This access will be limited to users outside of the US due to a “1980s law that creates some confusion over our ability to allow U.S. members to share what they watch.” Since Netflix didn’t cite the code or link to which “1980’s law” they are referring to, I thought it might be useful to post about it. Mr. Drobac is talking about  18 USC § 2710, “Wrongful Disclosure of Video Tape Rental or Sale Records.” This law authorizes civil penalties for release of consumer rentals or sales without informed consent of the renter or a court order.

The Texas Attorney Generals’ Office issued an opinion in July that effectively halts the Texas Forensic Science Commission’s investigation of the Cameron Todd Willingham case. Mr. Willingham was executed in 2004 after he was convicted of arson and murder in a 1991 fire that killed his three children. In 2009, the Texas Forensic Science Commission reported findings from a nationally recognized arson scientist that criticized and called into question the arson investigation and findings at trial. The investigation has been profiled nationwide,  with excellent coverage by the New Yorker and PBS’ Frontline (which my colleague Ken reviewed last year).

The Wall Street Journal Law Blog reported last month that a class action suit against legal forms provider Legal Zoom survived a motion for summary judgement and will proceed to trial in a Missouri federal court. In rejecting the defendant’s motion, Judge Laughrey allowed the plaintiffs to move forward with their complaint that consumers have been harmed by the company’s unauthorized practice of law in the state.

For an overview of the litigation and the recent order, see Venkat’s post on Eric Goldman’s Technology & Marketing Law Blog. We’ve pulled the filings on Justia Dockets, and you can follow the case there.

It’s a bad week for government documents. OMB Watch recently reported that the House voted to cut funding to the Government Printing Office. This comes as no surprise, given the recent budget drama, and it’s not likely to get a lot of mainstream attention with looming cuts to entitlement programs and the military funding.

It’s important for those of us that advocate for government transparency and open access to take note, however. The GPO is the office tasked with preserving and disseminating federal documents. Cuts to its budget means less access to the law for people who can least afford to pay for it.

California State Senator Loni Hancock (D-Alameda) recently introduced Senate Bill 490, which seeks to abolish the death penalty in California. This is the first time that the California Legislature has considered the issue of capital punishment since the current statute was enacted in 1978.

After Gregg vs. Georgia reinstated capital punishment nationwide, California voters approved the current death penalty law in a referendum. To amend that law, SB 490 must be approved by the voters because state law mandates that referendums can only be repealed at the ballot box.

If California voters approve SB 490, first-degree murder with one or more special circumstances will be punished by life without the possibility of parole. The death penalty option would no longer be available. Additionally, the state would halt future executions and commute all existing death sentences to life without parole.

The impetus for this effort comes from a Loyola of Los Angeles Law Review article authored by U.S. Court of Appeals for the Ninth Circuit Senior Judge Arthur L. Alarcon and Loyola Law School Los Angeles Adjunct Professor of Law Paula M. Mitchell. Their study contended that the abolition of capital punishment in California could save the state $1 billion dollars every five or six years. The study also found that “the state’s 714 death row prisoners cost $184 million more per year than those sentenced to life in prison without the possibility of parole.”

Don Heller, the author of the original enacting initiative, supports Senator Hancock’s bill. Heller has since come to “fervently believe” that capital punishment should be abolished. He says that when the law was drafted in 1978, his office grossly underestimated the costs to the state. He argues that each execution since the death penalty was reinstated under that law has cost the state $330 million, and it’s simply not worth it. It should be noted that the American Law Institute, which promulgates the Model Penal Code (upon which many states base their own statutes), has also reversed its position, taking capital punishment out of the model code.