David Kemp

As Hurricane Sandy moves toward New Jersey and Delaware, we thought it might be useful to pull some resources for those folks living in the projected path of the storm, as we did last year for Hurricane Irene. We hope that everyone in the area has found safe shelter and has all the necessities to weather the storm.

Federal Resources

Hurricane Resource Center– from Ready.gov – Resources and steps to take to protect yourself, your family and property.

• FEMA on Facebook
• FEMA on Twitter
• FEMA on YouTube

The National Flood Insurance Program

• National Flood Insurance Program Insurance Agent Locator – from Floodsmart.gov
• National Flood Insurance Program Laws & Regulations
  • 42 USC Chapter 50 National Flood Insurance
  • 44 CFR Chapter 1 Emergency Management and Assistance
• FEMA Flood Insurance Library

NOAA – National Hurricane Center

U.S. Coast Guard

United States v. White, US 7th Cir. (10/26/12)

Civil Rights, Constitutional Law, Criminal Law

White created a website to advance white supremacy and included a statement that “everyone associated with the Matt Hale trial has deserved assassination for a long time.” The site also included information related to the foreperson of the jury that convicted Hale, a white supremacist, of criminally soliciting harm to a federal judge. Although a jury convicted him of soliciting the commission of a violent federal crime against a juror, 18 U.S.C. 373, the district court held that the government failed to present sufficient evidence for a reasonable juror to conclude that White was guilty of criminal solicitation, and that White’s speech was protected by the First Amendment. The Seventh Circuit reinstated the conviction and remanded for sentencing. A rational jury could have found beyond a reasonable doubt that, based on the contents of the website, its readership, and other contextual factors, White intentionally solicited a violent crime against Juror A by posting Juror A’s personal information on his website. Criminal solicitation is not protected by the First Amendment.

American Freedom Defense Initiative v. Suburban Mobility Authority for Regional Transportation, US 6th Cir. (10/25/12)

Communications Law, Constitutional Law

American Freedom Defense Initiative is a nonprofit corporation that wanted to place an advertisement on the side of city buses in Michigan. The advertisement read: “Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get Answers! RefugefromIslam.com”. Suburban Mobility Authority for Regional Transportation (SMART), refused to display the advertisement. AFDI sued, claiming a First Amendment violation. The district court granted a preliminary injunction, holding that plaintiffs likely could show that SMART’s decision was arbitrary. The Sixth Circuit reversed. SMART’s policy prohibits: political or political campaign advertising; advertising promoting the sale of alcohol or tobacco; advertising that is false, misleading, or deceptive; advertising that is clearly defamatory or likely to hold up to scorn or ridicule any person or group of persons; and advertising that is obscene or pornographic; or in advocacy of imminent lawlessness or unlawful violent action. The restrictions, which concern a nonpublic forum are reasonable, viewpoint-neutral limits that do not deny AFDI’s First Amendment rights. The injunction would cause substantial harm to others, compelling SMART to post on its buses messages that have strong potential to alienate people and decrease ridership; the public interest would not be served by this preliminary injunction.

Yesterday, WhitServe LLC filed a lawsuit against Apple alleging infringement of a patent WhitServe owns. Filed in the U.S. District Court for the District of Connecticut, the lawsuit

The patent, U.S. Patent No. 7,921,139, is described as a “System for sequentially opening and displaying files in a directory.” Invented by Wesley W. Whitmyer, Jr.—sole member of WhitServe LLC according to a business search for the Connecticut company—the patent was filed December 1, 2006.

The allegedly infringing Apple products include Mac OS X Leopard, Mac OS X Lion, and Mac OS X Mountain Lion. According to the complaint, Apple introduced the “Quick Look” feature into its operating system with the release of Mac OS X Leopard on October 26, 2007—nearly one year after the patent at issue was filed. The complaint describes the Quick Look feature as allowing a user to “instantly preview almost any file, and even play media files, without opening an application.”

After detailing 37 ways in which Quick Look infringes on the plaintiff’s patent, the complaint asks for injunctive relief as well as damages for harm suffered.

Unlike many patent lawsuits against the technology giants like Apple, this suit stands out as being by the actual inventor of the patent at issue, rather than merely a patent holding company. Whether the merits of the suit will pan out for the plaintiff remains to be seen.

For several months, Facebook has reportedly been developing and testing a “Want” button, to supplement its ubiquitous “Like” button. Just last week, Facebook announced that several companies will be testing the new “Want” button and showed what the button would look like.

On October 12, shortly after the release of its new highly anticipated “Want” button, Facebook was sued by a company called CVG-SAB LLC for alleged trademark infringement and other claims over its “Want” marks, including U.S. Trademark No. 4,200,861 and No. 3,923,229, among others. The company, better known by the name under which it does business—Want—operates a social and interactive site that connects people with products they have, like, or desire.

The complaint alleges that “Facebook introduced a WANT Button for services that are effectively the same as, or at least closely related to, Plaintiff’s WANT Button services.” It further argues that Facebook’s use of the button will and has already caused confusion and violates the federal Lanham Act, Michigan’s Consumer Protection Act, and state common law.

The 2012 Law Via the Internet Conference at Cornell Law School has concluded, and the Justia attendees have headed back to sunny California. By every measure, I think the conference was a success. It stimulated thought and provoked discussion; it disseminated new ideas and revisited old ones; and it brought together a group of people with similar objectives and diverse experiences.

Here are some of my own thoughts and reactions:

• Innovators in the legal field must collaborate and share their knowledge, discoveries, and experiences to achieve their goals because the law is, by its very nature, resistant to change or disruption.
• We often use technology for silly purposes before—and sometimes well before—using it for nobler and more meaningful goals.
• Generally we have to develop a product according to what its users want, even if that isn’t what we think they should want.
• Ithaca is beautiful, cold, and very remote.

Although I, of course, am biased toward thinking that Justia’s own Tim Stanley had the most outstanding presentation, I was impressed with all of the people who presented at the sessions I attended. Richard Susskind and Clay Shirky—the two Justia-sponsored keynote speakers—invigorated the conference with their enthusiasm and vision, and I thought their presentations provided a theme and an energy that resurfaced continually throughout the various sessions of the conference.

Thanks to LVI 2012, I learned a great deal about the great work of my colleagues and peers, met some really inspiring people, and affirmed my own belief that the law should be freely available to all.

In a few days, several of us here at Justia will be traveling to “gorges” Ithaca, New York, to attend the 2012 Law Via the Internet Conference at Cornell Law School. The conference marks the 20th Anniversary of the Legal Information Institute (LII) at Cornell Law School, the Internet’s first legal website and the world’s leading online source for free legal information.

Since 1992, the LII has been committed to providing free and open access to the law—a mission aligned with Justia’s own mission to advance the availability of legal resources for the benefit of society.

With its opening reception on Sunday, October 7, the LII is welcoming to this global event nearly 300 advocates of open legal access from around the world.

The U.S. Supreme Court started its term today, hearing oral arguments for Kiobel v. Royal Dutch Petroleum. The case involves the interpretation of a federal statute enacted by the first Congress as part of the Judiciary Act of 1879—the Alien Tort Statute.

The Alien Tort Statute (ATS) provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The statute was all but unused until 1980, when the U.S. Court of Appeals for the Second Circuit ruled in Filartiga v. Pena-Irala that the ATS conferred jurisdiction over a lawsuit brought by a foreign national against another foreign national over actions that took place overseas. Since that ruling, the ATS has come up a handful of times, but only once previously before the Supreme Court.

In Kiobel, the case the Supreme Court heard today, twelve Nigerian nationals sued three European oil companies for helping the Nigerian government to kill and torture civilians. The case was originally filed in the U.S. District Court for the Southern District of New York, and the district court dismissed all claims against the corporate defendants, finding that the ATS imposes liability only against individuals, not corporations. On appeal, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of the claims.

The Supreme Court originally granted review in October 2011, but only as to the question whether the ATS applies to corporate conduct abroad. Shortly after hearing arguments on that issue in February 2012, the Court ordered supplemental briefing on the question whether an ATS claim could proceed when the conduct giving rise to the claim occurred wholly outside of the United States. Today’s oral argument focused on this second question.

Ameranth, Inc. filed a lawsuit against Apple, Inc. earlier this week in the U.S. District Court for the Southern District of California alleging that Apple’s new Passbook product infringes on Ameranth’s patented technology.

According to the complaint, Ameranth develops products to generate and synchronize menus and hospitality information across fixed, wireless, and web platforms. It claims to have been nominated by Bill Gates, founder of Microsoft, for the 2001 Computerworld Honors Award, which it won. The complaint further alleges that Gates described the company as “one of the leading pioneers of information technology for the betterment of mankind.”

Judging from the complaint, this suit seems unlike a typical “patent troll” suits, in which a small company that owns but often does not itself develop innovations sues a major technology company for infringement of obscure patents. These types of suits are commonly seen as using the patent system to hinder, rather than promote, innovation and creativity. In contrast, Ameranth seems to develop its own technologies and innovations, which could suggest the company’s lawsuit is driven by more than a desire for profit.

Last week, my colleague Ilana Bergstrom and I attended a session called “Law School for Digital Journalists” at a conference hosted by the Online News Association. Although both of us went to law school, the session seemed like an opportunity to learn about the unique issues that online journalists face. Indeed, the session promised “classes [on] the full range of legal issues that impact the professional lives of digital journalists: copyright, newsroom law, international media law, access and FOIA, and the legal issues involved in launching and running a digital news operation.” The instructors were experts on digital media law, presented in conjunction with the UNC Center for Media Law & Policy, the Stanford Law School Center for Internet & Society and the UC Berkeley Graduate School of Journalism.

Both of us found the speakers dynamic, the discussions interesting, and the material familiar yet refreshing. From First Amendment rights to U.K. copyright law to journalism/news business law, the topics covered reiterated the need for an ongoing dialogue between professionals in different fields. As a contributor to Justia’s Verdict and Onward Blog and with aspirations of writing more, I found the level of engagement to be stimulating, combining two of my own passions: writing and the law. Ilana writes for Justia’s Onward Blog and expressed similar satisfaction with the session’s treatment of the union of law and journalism.

As a side note, but of no less importance, we both thoroughly enjoyed the lunch presentation by Pulitzer Prize-winning political animator Mark Fiore. His presentation combined humor, politics, and a no-holds-barred commentary on some oft-overlooked aspects of our society.

Facebook and Apple have been hit with another patent infringement lawsuit brought by small, relatively obscure research/technology companies. Yesterday, PersonalWeb Technologies and Level 3 Communications filed a suit against both technology companies in the U.S. District Court for the Eastern District of Texas. The two plaintiff companies allegedly each own an undivided 50 percent interest in the patents at issue.

In the case against Facebook, the patents at issue are:

• U.S. Patent No. 5,978,791: “Data processing system using substantially unique identifiers to identify data items, whereby identical data items have the same identifiers”