Articles Posted in Laws

The Judicial Council announced last week that they plan to expand a pilot program to push federal court opinions to FDSys. In theory, that means that all federal court opinions could be published and freely available in the FDSys database soon.

FDSys is the digital repository for federal publications. It is operated by the Government Printing Office. Last year, the Judicial Council announced that it would begin integrating some opinions from PACER into FDSys. It began with opinions from 28 courts (three circuit courts of appeal). In December, I checked up on that and saw that FDSys had slip opinions in it and that they were actually being indexed by Google. I noted that they were a little behind, and they were slip opinions, not the officially published opinion, but hey – better than nothing.

In the latest announcement, the Judicial Council tells us that  “the functionality to transfer opinions to FDsys is included in the latest release of CM/ECF which is now available to all courts. Twenty-nine courts participated in the original pilot, and now, all courts may opt to participate in the program.” If I am reading this correctly, federal courts may now opt in to have their opinions transferred to FDSys. It’s not automatic or mandatory.

CALI has developed a prototype for uploading, storing, and sharing official court opinions called CourtCloud. Elmer Masters, the Director of Internet Development there, calls it a “Dropbox for courts.” The purpose of CourtCloud is to help courts self-publish their opinions.

I’ll break it down for non-technical people (such as myself):

The court clerk or judge has a CourtCloud folder on their computer desktop. When the opinions are written and ready to go, the clerk will drag it into the folder. From there, it is uploaded to the secure Court Cloud server. There, an algorithm converts it to pdf, html, and xml formats and places them into the same folder. The clerk can retrieve them in the chosen format and publish them to the court website. A copy will also automatically go to the Free Law Reporter, CALI’s court opinion database.

Access to opinions and codes is of particular interest to the bloggers at Justia. We complain mightily about private citation formats, paywalls to codes and caselaw online, privatization of court services and filings, and the government’s overall failure to provide us with official, free access to the public record. Last week’s news about the reauthorization of the FISA Amendments Act, however, highlights an altogether different problem of access to the law: secret, sealed court opinions from the nation’s Foreign Intelligence Surveillance Act Court. This body of law is not available for free or for purchase. It is sealed and hidden from the American people.

There is plenty of news coverage about the Act, and plenty of opinions online about the threat it poses to the freedom and privacy of Americans and non-Americans here and abroad. I’d like to highlight the problem of access to the output of the FISA Courts, and why we are still in the dark about their decisions – decisions that are legally binding precedent but that we know nothing about.

It appears that court opinions in FDSys are being indexed by the search engines now. If you’ll recall, the GPO announced last year that it was importing opinions from some federal courts into its centralized database (FDSys). In theory, this means that users would be able to search across a large collection of government documents that will now include published court opinions.

FDSys now contains opinions from 28 federal courts, including 3 Circuit Courts of Appeal (the 2nd, 8th, and 10th). I am happy to see that these are now indexed by Google, so the opinions will appear among search results when individuals search the web. It’s one step closer to aggregating this information in one central location.

Of course, FDSys is still very limited. It’s only pulling opinions from a few courts, and it doesn’t seem to be up to date. I searched for a case from October (Windsor v. United States), and could not find anything. The GPO announced last year that its funding was cut, so this program may be stalled.

Happy Thanksgiving from the Justia team — we are thankful for all our readers and free law friends!

The legal establishment of Thanksgiving began with a resolution from the U.S. Congress. The resolution put forth a request that President George Washington recommend a day of thanksgiving, which he did, via proclamation, by declaring Thursday, November 26th, 1789, a day of “Publick” thanksgiving.  You can find a copy of this proclamation, along with other historical legal documents and history relating to the holiday below.

• “Congress Establishes Thanksgiving“ – A brief history of the holiday from the National Archives.

After President Barack Obama was reelected last week, several petitions to secede appeared on the White House website. The petition feature of the site promises that “if a petition meets the signature threshold [of 25,000 signatures within 30 days], it will be reviewed by the Administration and we will issue a response.” The Houston Chronicle reports that by 3:40 PM EST, the petition to allow Texas to secede had already accumulated over 25,000 signatures. At the time of this writing, it has over 77,000 signatures.

Petitions on behalf of other states have received less attention and fewer signatures, but several have met or are approaching the 25,000 threshold, as well. Louisiana (29,000), Florida (23,000), Georgia (22,000), Alabama (21,300), Tennessee (20,700), and North Carolina (20,200) have all accrued a substantial number of supporters.

On more than one occasion, Texans (both officials and non-officials) have suggested that their state “has the right” to secede. Texas Governor Rick Perry has disavowed the online movement to secede, despite having previously acknowledged that secession might be an option. In 2009, the state legislature passed a resolution asserting state sovereignty—a resolution Governor Perry supported—although it has no binding effect on the federal government.

Last Friday, Intercarrier Communications LLC (“ICC”), a Texas limited liability company, filed lawsuits against at least thirteen different technology companies, including Apple Inc. Other defendants include the makers of such popular apps as TextNow and PingChat! (by Enflick), Viber, WhatsApp, and Glympse. The lawsuits were filed in the U.S. District Court for the Eastern District of Virginia, which seems on its face unusual for a Texas company.

In its suit against Apple, ICC alleges that Apple Messages and FaceTime products for iOS and OS X infringe on a patent it owns, U.S. Patent No. 6,985,748. According to its description, that patent is entitled “Inter-carrier Messaging Service Providing Phone Number Only Experience” and was invented by Chris Knotts. All of Knotts’s registered patents are related to inter-carrier messaging. According to the Texas Comptroller of Public Accounts, ICC registered with the Secretary of State on April 23, 2012.

Complaint in Intercarrier Communications LLC v. Apple Inc.

On Monday, in the shadow of then-Hurricane (now-Superstorm) Sandy, the U.S. Supreme Court heard oral arguments in Kirtsaeng v. John Wiley & Sons, Inc., a case involving the applicability of U.S. copyright law to copies of works created and legally acquired abroad and subsequently imported into the United States.

In the case, Supap Kirtsaeng, a college student from Thailand studying in the United States, launched a small online business selling textbooks. His family in Thailand bought foreign edition textbooks printed by Wiley Asia and mailed them to Kirtsaeng. Kirtsaeng then sold the textbooks online on sites such as eBay.com and reimbursed his family for the costs of purchase and shipping, retaining the remaining profits from the sale.

John Wiley & Sons subsequently sued Kirtsaeng in the U.S. District Court for the Southern District of New York, alleging copyright infringement, trademark infringement, and unfair competition under New York state law. As to the copyright claim, the district court judge determined that the language in 17 U.S.C. § 109(a), known as the “first sale doctrine,” does not include copyrighted goods manufactured abroad.

Why would a defendant litigate over four and a half years, finish conducting discovery, tell a court that it’s ready for trial, and then – only then – ask a plaintiff to admit that he posted photographs on Facebook and other social media sites?

That is the question answered in a recent New York decision by Suffolk County Supreme Court Justice Hector D. LaSalle. The case, Guzman v. Farrell Building Co., et al, highlights the consequences for a defendant who wants access to a plaintiff’s Facebook account after filing a note of issue and certificate of readiness to confirm that it is ready for trial.

Plaintiff Samuel Guzman, a construction worker, sued defendant general contractor Farrell Building Co. in early 2006 under New York Labor Law §240(1) for injuries he reportedly sustained in a two-story fall while at work building a home in the Hamptons. Cases filed under Labor Law § 240(1) impose strict liability against defendants found responsible for making sure that safety equipment is in place and operational in order to protect construction workers.

Four and a half years later, the GC informed the court that it completed discovery. It did this by filing a note of issue and certificate of readiness for trial. Soon after submitting this filing, however, the GC claimed its investigator had now found “several hundred photographs of the plaintiff that were posted to Internet media websites such as Facebook,” and others, that it believed were helpful to its case.

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.