Wednesday, April 30, 2003

Defendant's Doozie of the Week

" I thought that since I was double parked at a fire lane that I wasn't actually in the firelane. The other car, the one next to the curb, should have gotten the ticket."

Defense presented to the Court on 4/30/03.

Monday, April 28, 2003

What is "legal"?

I am frequently asked.. "is this legal?" or "is that legal?"

What is "legal" is determined by the last judge to rule on it. Until then, use your best prudent judgment and common sense. If you need a second opinion, ask a Delaware Lawyer.

Friday, April 25, 2003

substantial noninfringing uses

Is peer-to-peer file sharing software illegal, in and of itself? If you're going to ask yourself that question, you need to keep in mind at least a couple of things. One of them is that the software can be used legally by people to share files that aren't copyright protected, and it has been.

The other is that the software can do this from one computer directly to another without using a centralized network.

Why does that make a difference? Well, when you're being sued for contributory copyright infringment after releasing software that can be used in substantial noninfringing ways, and you don't have knowledge of nor control the connection between people who might be using it to infringe upon someone else copyright, it might. At least, that's what a federal judge in Los Angeles appears to believe.

journalism and blogging

Is is possible for a journalist to also maintain a blog? Is there a conflict of interest when you're in the information reporting and disseminating field, and you do for free at home what you get paid for at work? Does what you write about make a difference? (via blogdex).

commercial free speech and sneakers

The US Supreme Court heard oral arguments on Wednesday in a case involving the world's largest sneaker manufacturer, Nike. It's been characterized as a case involving questions of whether a corporation has a right to free speech, or a right to lie to the public.

Will the case be a landmark decision involving a clear cut definition of the constitutionality of commercial speech? What roles does the Supreme Court, the State Court, and the court of public opinion have in the case? Will the Court base their decision on a right to free speech, or as the U.S. Solicitor General argued, whether or not the plaintiff should have standing to sue under the law since he wasn't directly harmed.
The free-speech cause of Nike and other corporations got a major boost from the Bush administration, as Solicitor General Theodore B. Olson urged the court to strike down the California fraud law because it allows private individuals to sue to enforce it.

''California has transferred governmental authority to regulate marketplace speech to anyone with a grievance who can pay the [court] filing fee,'' Olson argued. ''That gives an individual the power to enhance his own agenda, unaccountable to anyone, with no proof that he has suffered any harm.''
If I had to guess, I'd say the later.

for the dogs

The judges don't wear black robes, and the judged are dogs. That's the setting this Friday and Saturday at Lums Pond in Delaware as the Wilmington Kennel Club brings an all breed dog show to the State. The judging starts at 9:00 am.

Wednesday, April 23, 2003

Happy Secretary/ Administrative Assistant/ Administrative Professional's Day!!!!!!!!!!!!

It is a team effort to manage a busy law firm. We couldn't do it without each and every one of you! Thank you.

Tuesday, April 22, 2003

amazon unfriendly to children?

Should be collecting information about peoples' ages when they sign up with the site? If those people are under the age of 13, should the site deny them the opportunity to participate in discussions online rather than risk violating COPPA? What part might the FTC have in enforcing the law against an e-commerce giant like Amazon?
If you operate a commercial Web site or an online service directed to children under 13 that collects personal information from children or if you operate a general audience Web site and have actual knowledge that you are collecting personal information from children, you must comply with the Children's Online Privacy Protection Act.
If you have children under the age of thirteen, you may want to review the list of items on the FTC's Kidz Privacy site's page for children. It's a good, common sense springboard for discussion.

happy earthday

Celebrated in over 180 countries, Earthday is a day to think about how much impact your life has upon the shared resources of the planet. Happy Earthday!

making a list

The Center for Democracy and Technology is coming to loggerjams with the Office of the Attorney General of the State of Pennsylvania. They are trying to use legal proceedings to get information about which web sites might be unreachable because of an effort on the part of Pennsylvania to block web sites that allegedly contain child pornography.

The state is blocking Internet Protocol (IP) addresses rather than specific domain names. It's not unusual for more than one site to share an IP address with a number of others. Actually, it's fairly common these days. It's quite possible that there are innocent sites blocked because the effort on the part of Pennsylvania.
A study released in February by Harvard Law School's Berkman Center for Internet & Society concluded that because modern Web standards permit thousands of domain names to share one Internet address, blocking illegal sites tends to lead to innocuous ones being targeted as well. It said the practice of Web sites sharing IP addresses is so commonplace that Yahoo hosts 74,000 Web sites at one address and uses one address for 68,000 domains.

Thursday, April 17, 2003

Delaware Attorney General Steps Up to the Service Counter

Now as a new service, the Delaware Attorney General has systematized the process for merchants to complain and collect on bad checks. Although the general process was already in the Delaware Code, it was largely self-help. Now the Attorney General's office promises to help. :-) And you don't have to be a Delaware lawyer to use it!

Google Page Rankings

As I learn more and more about how the internet works, and how people find my business on the web, I learn about Google page ranking. It strikes me as interesting that Google's own news page has the highest ranking, 10. I guess lots of people get their news from that page, huh? and get ratings of 9, while comes in at only a 6.

I wonder if my blog page rating will now drop. It has been fluctuating between 5 and 6.

I suppose they can do what they want, ay? They are a business, after all, not a social service or governmental agency. Here is a link to their regime bios. That page is rated 10 also. As is the page on how they decorate their corporate hallways and the location of the all-night doughnut shops nearest to their offices.... and it appears to me that every google page is rated at 10.

I wonder how much further down the road of integrating the web into our lives we will go before a legislature or judge determines that there should be an objective and unbiased search protocol? Would that be the end to the commercial search engines? Would that serve the increasing (and overwhelming) public interest in having a fair and open internet? Would that be an element of "interstate commerce"?

I used Google to research this blog entry.

Tuesday, April 15, 2003

ss united states on the high seas

The SS United States has been an very visible eyesore and a bit of heartbreak to all those traveling on Route 95 from Delaware to Philadelphia since 1996, when it was first left to die on the Philadelphia waterfront. I'm glad to be able to say that it has been rescued from bankruptcy, mothballs, and rust. It's no longer going to be an unused ship on an unused wharf. One of the largest, and one of the fastest ocean liners ever built, the ship is returning to the high seas.

The SS United States has been purchased (NY Times, reg. req'd) by Norwegian Cruise Line.

It will join the SS Independence as part of the first US Fleet of ocean liners in fifty years.

what is a reasonable hourly rate?

I have been chewing on an issue....: When we have to request Court Ordered counsel fees, I have not found a source to supply the Court for the purpose of determining what is a reasonable hourly rate. I followed a link at to a 2002 survey of the rates at the 250 largest firms, but I don't know how convincing that would be to a local judge. With the higher efficiency business model of a multi-attorney firm, however, would not it be reasonable that solos have higher rates than larger firms? After all, is not the hourly rate an artificial construct intended to reflect the cost of providing the service?

By deciding these issues with no evidence, Judges are in effect taking judicial notice of the local hourly rates, but with no data other than their experience. And some of these judges haven't been in private practice in 20 years...or ever. The judge in the E.D. Pennsylvania seems to agree with me in the decision in PETRONILA RIVERA v. PHILADELPHIA HOUSING AUTHORITY, et al. 97-CV-7976.

Wouldn't it be reasonable for the Delaware Bar Association to provide survey results as to the prevailing hourly rates for attorneys, with adjustment for relevant factors such as: years in practice; expertise; and complexity of the area of practice. Ahh but then everyone would claim price fixing. Well isn't price fixing by a rational economic method better than arbitrary and capricious?

Sunday, April 13, 2003

the riaa takes on the world

We linked to an article here a few days ago about four lawsuits pursued by the Recording Industry Association of America (RIAA). A couple of followup articles that describe the suits in more detail are Zack Rosen's $97,800,000,000 and Joseph Barillari's An analysis of the RIAA's complaint against Dan Peng '05. Interesting reading. What role might the DMCA have in protecting any of the defendants in these cases? What chance does the RIAA have in collecting that much money from the law suits it initiated here?

Wednesday, April 09, 2003

delaware courts top harris poll

I'm not sure that many large Delaware companies would like the wording of an article from Forbes Magazine today, even though they might agree with the sentiment. The title of the piece is: US businesses prefer to be sued in Delaware -poll. The truth of the matter is that very few businesses prefer to be sued anywhere. But, if their attorneys' had their way, the first choice, for the second year in a row, appears to be Delaware.

The U.S. Chamber Institute for Legal Reform ranked Delaware as number one in the majority of categories in the second year of their poll run by Harris Interactive. Congratulations, Delaware Courts.

dancing in the first state

It looks like April is going to bring music to southern Delaware. The second annual Delaware Music Festival will feature 63 different acts over two days in Dewey Beach, Delaware, on April 11 and 12.

Then, later in the month brings Delaware its very first Blues Festival over a four day period, from April 24 through 27.

Speaking about art in Southern Delaware, make sure that you don't miss the dolphins in Rehoboth.

interstate communications during times of crisis

How prepared is your state in the event of an emergency that required cooperation throughout the state by police, firefighters, and emergency personnel? is reporting that only fourteen states have upgraded their communications equipment to allow for such coordination.

A joint venture between the Department of Treasury and the Justice Department, the National Interoperability Scorecard measures and reports upon such improvements over the past two years. Delaware was one of the fourteen states to manage this change. Of course, Delaware may be small enough to pull this feat off with string and paper cups (just kidding... the State's not that small).

critiquing filtering software

Delaware Law Office is not currently categorized by N2H2's web filtering software. Is your web site?

The ability to figure out how such software works, and to review a list of the sites it blocks is a criminal action under the Digital Millennium Copyright Act.

supreme court vacancy

The forerunners for the Delaware Supreme Court vacancy (due to the retirement from the bench of Justice Walsh), seem to be Vice Chancellor Jack B. Jacobs and Superior Court Resident Judge Richard R. Cooch. Time will tell.
the question of the day

Was Saddam Bush-Whacked?

Tuesday, April 08, 2003

high court upholds ban on cross burning

The U.S. Supreme Court has issued an opinion in which it tipped the balance scales in favor of a Virginia statutory ban on cross burning (when done to intimidate) at the expense of free speech rights.

A more thorough analysis is presented by Howard Basham at How Appealing, et. seq..

Ok.... then... what about flag burning?

Monday, April 07, 2003

shredding libraries

These days, when I go to the Library, I don't ask for help from the reference librarian.

I'm concerned about taking books out because I don't want to leave a paper trail.

I thought about trying to read books from a list I saw earlier this year of the 100 most significant books of the past century. I'm not sure that I will though. Some of them might not look too good on my permanent record.

Next time I go to the Library, I'm going to check to make sure my librarian has a shredder (NY Times link, free reg. req'd)
Happy daylight savings time!

Saturday, April 05, 2003

the popular death penalty

A New York Review of Books essay on Scott Banner's The Death Penalty: An American History discusses the history of the penalty and legislative, executive, and judicial responses to it. If you find yourself interested in the use of this penalty during America's history, this article is a good starting point.

file sharing on campus

Some serious firepower was leveled against college students this past week by the recording industry. Law suits were initiated against 4 students who had songs available to share with others. The music was stored on computers connected to the college networks. The plaintiff record companies stated that they would drop the suits if the file sharing services were shut down.

online music agreement

It appears that a new agreement has been reached between web casters and the record industry regarding royalties rates for songs online. This new meeting of the minds was focused more upon rates for some of the larger web music groups, who seemed to have been left out of the last agreement.

Thursday, April 03, 2003

port of wilmington to go high tech

Security is coming to longshoremen and stevedores along the Port of Wilmington this summer. That's big time, high tech, super large budget security. The Transportation Security Administration is going wild on Delaware's secured positions.

Tuesday, April 01, 2003

in defense of squatters

Larry's post about domain name squatting had me thinking about actual squatters of the off-line variety. I came across a compelling piece of literature called Squatting: the real story. With very readable chapters like The erosion of squatters rights, it's some interesting material that explains as much about society as it does about those who move into abandoned buildings. While its focus is upon squatting in the UK, it's worth looking over regardless. The book is brought to us by the Advisory Service for Squatters.

squatters must get off the pot

The Third Circuit Court of Appeals reversed a lower Court interpretation of the Anti-cybersquatting Consumer Protection Act, 15 U.S.C. § 1129 (2002), in Schmidheiny v. Weber, (3d Cir. Feb. 11, 2003) Nygaard, J.. Score one for the good guys!

The lower court had said that the statute prohibited "registering" a domain name that was someone else's name, for profit, but that it didn't prohibit "re-registering" it. The Circuit Court said, phooey, a skunk is a skunk is a skunk.

Denise Howell Rocks!

Thank you, Denise. :-)

Law Clerk's Notes

U.S. District Judge Sue L. Robinson has ruled, in an order made public March 31, 2003, that prison mattresses on the floor is not cruel and unusual punishment. Due to overcrowding at Delaware's Gander Hill prison, some inmates were forced to sleep on a mattress on the floor. The U.S. District Court has ruled that forcing an inmate to sleep on a mattress on the floor does not violate inmates' constitutional protection to be free from cruel and unusual punishment.

By Kevin Mann