Welcome to "On the 50 Yard Line" The Blog of Stuart L. Pardau, Attorney, Professor and Observer of Political Economy; It’s not just about football.

Saturday, December 31, 2011

Court in India Orders Facebook, Google and Others to Delete "Anti-Religious" Posts

The always excellent Volokh Conspiracy relays that:

"The Times of India reports that the material included “derogatory articles on Prophet Mohammad, Jesus Christ and Hindu gods and goddesses.” “‘The contents are certainly disrespectful to the religious sentiments and faith and seem to be intended to outrage the feelings of religious people whether Hindu, Muslim or Christian,’ the magistrate said.”
The article does not indicate whether this is somehow targeted to Indian-hosted material, or to material being asked using identifiably Indian IP addresses, or whether this would in effect require the companies to delete all material put up by anyone, given that it can potentially be accessed in India."


Siri iphone Curses Out Twelve Year Old

Friday, December 30, 2011

All Things D Website Posts Gloria Allred June 2010 Letter to Mark Hurd

Here it is. The Allred letter is 8 pages in length. I have taken a quick look. Not quite as salacious as one would have thought.  Allred alleges pretty definitively that all the advances against her client were "unwanted". Then, in a subsequent communication,  Fisher recanted even further "inaccuracies" that were in the original 8 page Allred letter. Like all these things, it boils down to "he said, she said." Since neither the "he" nor the "she" appear to be saying much now, the true facts of this will probably stay buried.


Netflix and Gap Are at Bottom of Online Customer Satisfaction, Survey Says

Customer satisfaction survey taken over Holiday Season of online retailers by Michigan-based, market research firm, Foresee.  http://www.foresee.com/?gclid=CP3l-6amqq0CFWgaQgodIjoMlw


Netflix and Gap Are at Bottom of Online Customer Satisfaction, Survey Says

Customer satisfaction survey taken over Holiday Season of online retailers by Foresee


The Growth of Online Payday Lending

Some interesting context and analysis from the Volokh Conspiracy on the growing trend of online Payday lending.


Sears to Close Between 100 and 120 stores

This is very sad, though, not surprising news. Sears has been sucking wind for some time. Turn around artist Edward Lampert who supposedly was going to revitalize both the Sears and K-Mart brands is eating a big slice of humble pie.

I must say that the few occasions I have had to walk into a Sears store over the past several years (the one in Thousand Oaks, CA comes immediately to mind) has always been eye-opening. Why? Because there were never any customers in there with me. I mean, none. Nada. Nunca. It felt like a vacant Department Store movie studio set.  Come to think of it, I don't know anyone that shops there.  Certainly nowhere in the league of Wal-Mart, Target, and Costco.

I am afraid that this announcement is a major milestone on the death road of this faded, but still iconic, American brand.


Sears to Close Between 100 and 120 stores

This is very sad, though, not surprising news. Sears has been sucking wind for some time. Turn around artist


Software Company Copyright Infringement Damage Award Knocked Down By Judge

One of the companies, Real View, downloaded an infringing copy of the other company's (20-20 Technologies) software via a file sharing network. Real View then used the software to learn about what 20-20 was offering, and modified its own software to include some similar features, and then used a different business model which undercut 20-20's business model quite a bit. 20-20 sued for infringement both over the download and over the software. The jury said that the new software didn't violate anyone's copyright, as reverse engineering similar features to a competitor is not infringement.

However, since the initial download was infringing, the jury did have to rule on the damages there.  20-20 argued that Real View should pay $38M, which is the amount 20-20 spent to buy a competitor company. Failing that, 20-20 argued that Real View should pay $2M due to "price erosion." Real View said it should pay 20-20's standard license fee of $4,200--although apparently 20-20 wouldn't have licensed the software at all to Real View, making the license fee calculation somewhat hypothetical. Real View also admitted to about making three-quarter million dollars in profits from its own licenses. The jury came back with an award of $1.37M. In this ruling, the judge issued a remittitur down to $4,200, holding that Real View only was liable for the license fee for the unauthorized download--everything else wasn't proved or was irrelevant.


Thursday, December 29, 2011

GoDaddy Throws in Towel on SOPA

Based on massive boycott and adverse publicity, GoDaddy has reversed course and now will oppose the Stop Online Piracy Act (SOPA).


2012 U.S. Auto Sales Projected to Hit 2008 Peak Levels, TrueCar says

Light vehicle sales for 2011 -- including cars, trucks and SUVs marketed to consumers -- will hit nearly 12.8 million, according to industry research firm TrueCar.com. That's up from 11.6 million last year and is the highest annual total since the 13.2 million vehicles sold in 2008. TrueCar projects 13.8 million units for 2012.


Delaware Court Says HP and Mark Hurd Must Disclose Letter Accusing Hurd of Sexual Harrasment

Former HP CEO Mark Hurd left the firm in disgrace when it came to light he was accused of sexual harassment by a former independent contractor, Jodie Fisher.  An internal HP investigation revealed that Hurd had falsified expense reports involving expenses with personal encounters with Ms. Fisher.  Hurd was forced out of HP and he reached a confidential settlement with Fisher. Hurd then went on to bigger and better things as co-CEO of Oracle.

Neither the Fisher demand letter nor the contents of the HP internal investigation have ever been publicly revealed. Now, a shareholder has successfully persuaded a Delaware court to require disclosure of these materials.

Adding to the drama is the fact that though it was never publicly admitted by either Hurd or Fisher, the strong inference is that both of them carried on an affair meeting in exotic places on the company dime. There is also smoke around Hurd's supposed disclosure of the HP/EDS deal to Fisher prior to any public disclosure of it.  And, finally, it later came out that prior to Fisher's career as a marketing consultant, she was an actress: in the "soft porn" industry.   http://www.pcworld.com/article/202894/softcore_porn_star_linked_to_former_hp_ceos_resignation.html

Let the fireworks begin.


Wednesday, December 28, 2011

Obama-Clinton 2012 Ticket, Robert Reich Predicts

Reich professes no "inside information", though he is the former Secretary of Labor in the Bill Clinton Administration and well-known FOB ("Friend of Bill"). But Reich does present a compelling scenario where Vice-President Biden would swap positions with Hilary Clinton.


New York Times Feature Article on Richard Prince Copyright Infringement Suit

As the New York Times reported:

"In March a federal district court judge in Manhattan ruled that Mr. Prince — whose career was built on appropriating imagery created by others — broke the law by taking photographs from a book about Rastafarians and using them without permission to create the collages and a series of paintings based on them, which quickly sold for serious money even by today’s gilded art-world standards: almost $2.5 million for one of the works. (“Wow — yeah,” Mr. Prince said when a lawyer asked him under oath in the district court case if that figure was correct.)"


Alleged Discrimination Suit Against Conservative Law Professor Has Basis to Proceed, Eighth Circuit Says

A woman who alleges she was denied a job at the University of Iowa College of Law because of her conservative politics can proceed with a discrimination lawsuit, based on 1st Amendment grounds,  against the school’s former dean, a federal appeals court ruled on Wednesday.


This Quote Should Be Indexed in either the Chutzpah, Cluelessness or Moral Depravity Sections

Or perhaps in all three.

 A gem, of sorts, really.

From the "Above the Law" blog:

"You don’t want to have marijuana dealing from the middle of your law office because I was running a giant Ponzi scheme out of there."
– Scott Rothstein, convicted Ponzi schemer and disbarred attorney, commenting during a deposition about his attempts to stop former Rothstein Rosenfeldt Adleremployees from dealing drugs in the office.


The Problems of Europe

Recent ECB injections may have forestalled financial collapse in Europe, but one gets the sense it is only temporary. The economic and social problems of Europe are deep and not easily remedied.


Tuesday, December 27, 2011

Note to All Appellate Lawyers: Limit the Issues You Brief

From the Volokh Conspiracy, the link contains much needed, but too often not heeded, advice when bringing appeals.


Larry Ribstein -- RIP

Prolific corporate and securities law scholar and founder of the excellent "Truth on the Market" blog passed away last week. The link below is a commemoration which summarizes his many contributions.


Class Action Lawsuit in Nevada regarding Robo-signatures

A lawyer in Las Vegas has filed a civil lawsuit seeking class-action status on behalf of homeowners he says have been hurt by the filing of fraudulent foreclosure documents during an alleged “robo-siging” scheme.

The attorney said he wants a state judge to stop tainted home sales and evictions and order Lender Processing Services Inc. and several bank and mortgage companies to modify loans and pay monetary damages to affected homeowners.


Client Sues Faegre and Benson for Legal Malpractice

Client alleges standard indemnification wasn't included in Agreement but should have been.


Brazil overtakes the United Kingdom as the Sixth Largest Economy in the World

From largest GDP to smallest, here are the top 7:

1. USA
2. China
3. Japan
4. Germany
5. France
6. Brazil
7. United Kingdom


The Secondary Market for Gift Cards

Gift-card sales are expected to reach a record $27.8 billion this year so pay special attention...there are reputable websites out there that will "buy back" your gift cards for 85% of their face value and then resell them at, say, 93%. Not a bad spread and quite an interesting business.


comScore's 2011 Social Media Report

Some very interesting data and insights from this important report, including:

1) In terms of adoption,  Facebook's penetration in North America is about as deep as it is going to get; the growth is in Latin America, Asia and Africa.  But growth opportunities still remain for existing  North American customers in the form of new product offerings.

2) Email usage is declining rapidly overall but dramatically so among younger users.  What would be useful to examine is how is the broken down relative to business uses vs. personal uses.   Clearly business uses of social media trends way behind personal uses; the question is for how long and to what degree?

3) In 2007, only 6% of online activity was in social media; four years later that figure has more than tripled.


Monday, December 26, 2011

Dark Visions of the California Dream and a Glimpse into the Near Future

Ed Driscoll pulls together some powerful commentary on where California is a the end of 2011 and what this portends for the Republic as a whole.  While the gravity of the situation must not be underestimated, so too must we not fall into a defeatist paralysis. As Victor Davis Hanson, quoted so extensively by Driscoll in this piece, has repeatedly stated (and I paraphrase): "America's decline is based on decisions not destiny. As daunting as the economic and social challenges may appear today, are they greater than the threat posed by German Nazism and Japanese Imperialism?  A greater threat to the Republic than the secessionist South and the Civil War that followed?   Decisions and choices got us into this current mess.  A series of bold and different choices can lead us out of it.


24 States Support FDA Tobacco Label Warnings

Several states have weighed in on the lawsuit between the federal government and big tobacco over new graphic tobacco warning labels the FDA wants placed on cigarette packs in 2012.
Last month, a U.S. District Court judge granted a request by some of the nation's largest tobacco companies, including R.J. Reynolds Tobacco Co. and Lorillard Tobacco Co., to block the labels while deciding whether the labels violate free speech rights. Some proposed labels include phrases like "Smoking can kill you" and "Cigarettes cause cancer" and images of a smoker's corpse and diseased lungs. The judge ruled it is likely the cigarette makers would succeed in a lawsuit to block the requirement.
The cases could be locked up in the courts for some time, buying additional time for the tobacco companies before they required to do anything.


Do we each of us have a copyrightable interest in...our faces?

No, I don't think so. But some are trying to push out that notion. A baseless (note, which rhymes with "faceless") concept.

There may be very be legitimate concerns associated with the facial recognition technology, but they are best addressed with privacy and data security law, not copyright.


GoDaddy Voices Support for Stop Online Privacy Act (SOPA)

Website hosting company GoDaddy has officially voiced its support for the Stop Online Piracy Act (SOPA) Bill in 2012, which is designed to thwart movie and music piracy on the Internet by empowering copyright holders to effectively shut down websites or online services found with infringing material. If passed, the U.S. government could blacklist any website it deems in violation of copyright, which could range from a few posts in a Web forum to a few links sent in an e-mail.


Minimum Wage Set to Increase in 8 states

The minimum wage is $7.25 per hour. 18 states and the District of Columbia, however, have minimum wages that are in excess of the Federal minimum. 

In 2012, minimum wage rates in Arizona, Colorado, Florida, Montana, Ohio, Oregon, Vermont and Washington will rise between 28 and 37 cents per hour on Jan. 1, thanks to state laws requiring that minimum wage keeps pace with inflation.


Friday, December 23, 2011

Face.Com and the Widespread Adoption of Facial Recognition

Great piece on Israeli company, Face.com and the widespread adoption of facial recognition technology.


Reports of the Sunbelt's Demise Are Premature

So says the always interesting, Joel Kotkin. And indeed the statistics (which appear in the article) support that assertion. Places like New York, Illinois, Ohio and New Jersey continue to be major net losers of people. Conversely, Texas, Florida, North Carolina have continued population gains. Two notable Sunbelt exceptions: California and Nevada. But even California, a state with almost double the population of New York state (about 37 million compared to about 19 million) still had half the level of net migration (65,000 vs New York's almost 120,000).


Reports of the Sunbelt's Demise Are Premature

So says the always interesting, Joel Kotkin. And indeed the statistics (which appear in the article) support that assertion. Places like New York, Illinois, Ohio and New Jersey continue to be major net losers of people. Conversely, Texas, Florida, North Carolina have continued population gains. Two notable Sunbelt exceptions: California and Nevada. But even California, a state with


Lawyers Still Holding Up the Rear When It Comes to Social Media

But maybe 2012 things will start to change.  According to this WSJ Law Blog posting, at least, smaller firms, on average, outpace larger firms in their use of social media.  Another kernel of wisdom is to make more frequent use of YouTube which is more regularly rewarded in the form of higher Google rankings.


Medicare is Good Business

And this is an exam at the Esteemed Harvard Law School?

Yes, this is not a joke. It is actually from a 2011 Final Exam for an Evidence course at Harvard Law School. But then again, the Professor is Charles Nesson, a notorious nut-job. Professor Nesson, you will recall, was counsel for Joel Tenenbaum in the P2P copyright infringement  case of Sony v. Tenenebaum. Here is what District Court Judge Nancy Gertner said about Nesson's defense. (By the way, the same Judge Gertner, who on shaky constitutional grounds unilaterally lowered a $675,000 jury damage award against Nesson's client to $67,500, a decision to only later be overturned by the First Circuit on appeal):

"Defense counsel repeatedly missed deadlines, ignored rules, engaged in litigation over conduct that was plainly illegal (namely, the right to tape counsel and the Court without consent), and even went so far as to post the illegal recordings on the web," 


And this is an exam at the Esteemed Harvard Law School?

Yes, this is not a joke. It is actually from a 2011 Final Exam for an Evidence course at Harvard Law School. But then again, the Professor is Charles Nesson, a notorious nut-job. Professor Nesson, you will require, was counsel for Joel Tenenbaum in the P2P copyright infringement  case of Sony v. Tenenebaum and wherein Nesson


Four Retired Professional Football Players Sue NFL for Alleged Brain Damage

Dorsey Levens and Jamal Lewis, both named to the annual All-Star Pro Bowl, as well as Fulton Kuykendall and Ryan Stewart, filed the lawsuit against the National Football League and NFL Properties LLC on Wednesday in U.S. District Court in Atlanta.
The suits are the latest in a series filed against the NFL in recent months by former players who say the league did not do enough to protect them from concussions.
The Atlanta suit alleges the NFL knew as early as the 1920s of the potential for concussions but only made them public in 2010.


Thursday, December 22, 2011

Duncan Law School, Denied Accreditation, Sues ABA

Just two days ago, Duncan Law School which was recently profiled in a New York Times article and two days later denied accreditation by the ABA, has wasted no time (quite literally) in filing an antitrust lawsuit  alleging that the ABA stifles competition by limiting the number of law schools.


Study Estimates Chevy Volt Federal and State Subsidies to Equal $250,000 per vehicle, or $3 billion in total

Each Chevy Volt sold thus far may have as much as $250,000 in state and federal dollars in incentives behind it – a total of $3 billion altogether, according to an analysis by James Hohman, assistant director of fiscal policy at the Mackinac Center for Public Policy. Mackinac reports on the study at its Michigan Capitol Confidential site -- as if Chevy Volt batteries spontaneously going on fire was not bad enough. 

A few billion here, a few billion there, and we are starting to talk about real money. We constantly hear the "waste, fraud and abuse" mantra, but it really is the case that there is a massive amount of waste in the system and government support for the Chevy Volt is one such example.


Merger of Two Mid-Sized, Midwestern Law Firms: Bingham McHale and Greenbaum, Doll

Indiana law firm Bingham McHale, counsel to Gatorade Trust (which represents the inventors of the sport drink), will merge next month with Greenebaum Doll & McDonald, which has offices in Kentucky and Ohio and represents Kentucky health insurerHumana Inc.

The combined firm will be called Bingham Greenebaum Doll


Judge Rules Against Discovery That Would Require Review of 65 Million Documents

I don't know the particulars, but this strikes me as a sensible and sound decision that actually weighs costs and benefits. But this one is so over the top, that in the normal course of things, should be an "easy one". What about the vast majority of ones that may not be so easy, but to any rational person would appear to be a complete waste of resources and an abuse of our system?


Legacy Media Provides Heavy Support to SOPA Co-Sponsors, Reps Berman and Schiff

Traditional big media firms have contributed more than $5 million to the sponsors of the Stop Online Piracy Act, with California Democratic Reps. Howard Berman and Adam Schiff as the top recipients.  


Cal State Universities "Overwhelmed" By Remedial Needs

The remedial numbers are shocking, given that the Cal State system admits only freshmen who graduated in the top one-third of their high-school class. About 27,300 freshmen in the 2010 entering class of about 42,700 needed remedial work in math, English or both.
Moving forward, the Cal States will require Early Start courses, so the university is trying, in part, to cut down the number of students kicked out for failing to complete remedial classes their first year.

Disney accused of swiping Santa gives Paws Movie idea

Disney Enterprises Inc. and others on Tuesday were targeted in a copyright infringement suit in a Missouri federal court by three men alleging the defendants ripped off their idea for a children’s holiday movie about a dog named Santa Paws.


Yahoo Weighs Cash-out Exits of some of its key Asian Assets

Yahoo Inc is discussing a plan to slash its stakes in China's Alibaba Group and a Japanese affiliate in a complex deal worth roughly $17 billion, sources familiar with the matter said.
The deal - the latest proposals put forth in recent months to resuscitate the once high-flying Internet company - is expected to be considered by Yahoo's board on Thursday, one of the sources said.
The board was uninterested in entertaining offers for the entire company at this point, the source, who spoke on condition of anonymity, added.


Wednesday, December 21, 2011

China Hackers Breach U.S. Chamber of Commerce Computer Network

The WSJ was all over this breach. This breach allegedly took place in May 2010. Not clear why this news is being released now and what, if anything, the U.S. is officially doing about it.


Los Angeles Mayor Villaraigosa Says City Budget Cuts Necessary to Offset Occupy LA Costs

A few weeks ago the Mayor's office floated the brilliant idea that the city would provide -- rent free -- office space to the Occupy LA crowd for the supposed purpose of encouraging them to get off L.A.'s streets. Now comes the news that other constituencies in the city will be taking a hit to fund the city expenses (more police, traffic control, trash collectors) in connection with Occupy LA.  As someone who lives and pays taxes in Los Angeles this really troubles me.


Banks Take almost Half A Trillion in one-time infusion by Euro Central Bank (ECB) Loans

The near half a trillion euro take-up of ECB funds represented the most the bank has ever pumped into the financial system and exceeded almost all forecasts. A total of 523 banks borrowed with demand way above the 310 billion euros expected by traders polled by Reuters,

How much longer can this continue? How much more money can be thrown at the financial system and to what end?


Wal-Mart's push in e-commerce

It seems to me that if Wal-Mart leaves this business unit and does not interfere with their autonomy, this might actually be a wildly successful venture. It does appear that they are investing the resources. The fact that the operation is in California,  far away from corporate HQ in Arkansas augurs well for success.  Reuters reports that:

"[A] new unit of the company called @WalmartLabs near Silicon Valley which is crunching mountains of data from social networks and riding a wave of smartphone adoption in hopes of capturing more sales for Wal-Mart online...
@WalmartLabs is aggressively hiring software developers and has started what could turn into a string of global e-commerce acquisitions on behalf of the retailer overseen by former Evercore investment banker Brian Roberts...


Stop Online Piracy Act (SOPA) and "Protect IP" bills are Flawed and Will Cause Harm to the Internet, Stanford Law Review Argues

Co-authored by Stanford Law Professor, Professor Mark Lemley, the article state in relevant part:

"To begin with, the bills represent an unprecedented, legally sanctioned assault on the Internet’s critical technical infrastructure. Based upon nothing more than an application by a federal prosecutor alleging that a foreign website is “dedicated to infringing activities,” Protect IP authorizes courts to order all U.S. Internet service providers, domain name registries, domain name registrars, and operators of domain name servers—a category that includes hundreds of thousands of small and medium-sized businesses, colleges, universities, nonprofit organizations, and the like—to take steps to prevent the offending site’s domain name from translating to the correct Internet protocol address. These orders can be issued even when the domains in question are located outside of the United States and registered in top-level domains (e.g., .fr, .de, or .jp) whose operators are themselves located outside the United States; indeed, some of the bills’ remedial provisions are directed solely at such domains...
The bills take aim not only at the Internet’s core technical infrastructure, but at its economic and commercial infrastructure as well. Credit card companies, banks, and other financial institutions could be ordered to “prevent, prohibit, or suspend” all dealings with the site associated with the domain name. Online advertisers could be ordered to cease providing advertising services to the site associated with the domain name. Search engine providers could be ordered to “remove or disable access to the Internet site associated with the domain name,” and to disable all hypertext links to the site.

As serious as these infirmities are, SOPA, the House’s bill, builds upon them, enlarges them, and makes them worse. Under SOPA, IP rights holders can proceed vigilante-style against allegedly offending sites, without any court hearing or any judicial intervention or oversight whatsoever. For example, SOPA establishes a scheme under which an IP rights holder need only notify credit card companies of the facts supporting its “good faith belief” that an identified Internet site is “primarily designed or operated for the purpose of” infringement. The recipients of that notice will then have five days to cease doing business with the specified site by taking “technically feasible and reasonable” steps to prevent it “from completing payment transactions” with customers. And all of this occurs based upon a notice delivered by the rights holder, which no neutral third party has even looked at, let alone adjudicated on the merits..."


Price Fixing Litigation in E-Books

Lead counsel was appointed in a collection of antitrust lawsuits against most of the major publishers in New York, and Apple, for what plaintiffs call a “conspiracy” between the publishers with Apple to set prices on e-books. The publishers and Apple deny the allegations.
In early December, federal judicial panel ordered that all suits regarding antitrust issues over electronic book pricing be transferred to New York, including 11 cases originally filed in California, some of which have yet to be transferred. Cases with at least 13 individual plaintiffs are now in New York.


SEC Sues Former NFL Star, Willie Gault, in "pump and dump" case

Joining other recently retired athletes involved in claims of SEC  '33 and '34 Act violations, this former Chicago Bears Wide Receiver Willie Gault gets sued by the SEC.

Some of these recent examples include former Oriole Third Baseman, Doug Decincces, former footballer., Ray Wersching, and "Rudy", the walk-on at Notre Dame.


Michigan Economy: The Ship is Turning Around

For years, Michigan suffered the highest unemployment rate in the nation. But in November, the state enjoyed the biggest improvement in its jobless rate of any of the 50 states.
With Michigan's rate dropping to 9.8% in November from 10.6% the previous month, the state posted the steepest drop in its rate in the nation, the U.S. Bureau of Labor Statistics reported Tuesday. Moreover, Michigan now posts a lower jobless rate than nine other states.


LapBand Advertising and Claims Come Under Scrutiny...From Los Angeles County Board of Supervisors

The Los Angeles Times Reports that:

Los Angeles County supervisors voted to press for new state oversight of outpatient surgery centers, a response to concern about the widespread 1-800-GET-THIN advertising for Lap-Band weight-loss surgery.
Supervisors took that step Tuesday after a lengthy hearing about the ad campaign, which came under scrutiny last week from the Food and Drug Administration. The agency says the billboard, radio and television ads are misleading because they don’t adequately warn about risks to patient


Tuesday, December 20, 2011

Duncan School of Law Denied ABA Accreditation

Earlier in the week, I blogged about ABA accreditation and the barriers to entry it creates.  I linked to an excellent piece in the New York Times about this very subject; the NYT piece also spent a considerable portion of the article profiling the Duncan School of Law and the travails it faced in competing among well known schools and in trying to get ABA accreditation. Well, two days after the article appeared, the ABA denied accreditation.


Forbes "30 under 30" In the Law and Policy Fields

Any time you get discouraged about America's future, take a look at this list and the amazing things these young achievers have accomplished with easily another half-century of contributions ahead of them.   Amen.


Facebook Loses Motion To Dismiss in Federal Court re Alleged Breaches of Users' Rights of Publicity

A  lawsuit has been brought by a group of plaintiffs who allege that Facebook misappropriated their names, photographs, likenesses and identities for use in paid advertisements without proper consent.

The lawsuit is over a type of social ad called a “Sponsored Story,” which is created when a Facebook user “likes” a product or service and is shown to that user’s friends. In other words, if you “like” a brand, you become a spokesman for it.
Facebook's motion to dismiss was denied by the Federal Court in California.
The plaintiffs’ allege the ads violated their statutory “right of publicity” under California law. It protects against the non-consensual use of another’s likeness, voice, name for advertising or selling purposes.
One of Facebook’s arguments in favor of its motion to dismiss was that the ads were covered by the “newsworthy” exception of the California law, which tracks the First Amendment and allows for the broad use of another’s likeness in connection with any news, public affairs, or sports broadcast or account.
According to Facebook, the ads are newsworthy (and thus exempt) because Facebook users are “public figures” to their friends, and “expressions of consumer opinion” are generally newsworthy. Frankly, this argument strikes me as at best over-reaching, and at worst, disingenuous. Based on this logic, as social media becomes even more widely adopted (we can imagine a day in the not too distant future when everyone in America is on Facebook or its equivalent just as pretty much everyone today has a telephone).  According to Facebook's logic would this mean that at some point everyone becomes a "public figure"? That just can't be correct.

For me, the more compelling, though perhaps less sexy argument, is the one around the Facebook terms of use (which at least today, seem to allow for such use). Here, there does appear to be some basis for Facebook's actions, though it seems the Court correctly identified enough questions and factual issues that require survival past the motion to dismiss and even summary judgment stages. (It seems that the terms of use may have  been changed at some point after the plaintiffs initially signed on to Facebook; interestingly this raises similar issues which governed the Facebook FTC consent decree concerning subsequent changes to Facebook privacy practices which were adopted without any affirmative consent from affected Facebook users; I need more facts of this case, but it seems similar dynamics may be in play.


Has the RIAA Themselves Pirated Over $9 million of TV programming?

If true, talk about a public relations fiasco for the RIAA, which has made its mission to lead the charge in suing defendants (most of whom are ordinary folks) for the same or similar conduct described here.


Is Bank of America Going Down?

With the stock price falling below $5, at levels not seen since the nadir of the Financial Crisis in the Spring of 2009, Bank of America has problems, perhaps very serious problems.

The stock closed at $4.99, down 4 percent, after dropping as low as $4.92. The shares have not closed below $5 since March 11, 2009.

In recent months, the shares of financial institutions have declined on worries about the global economy and possible exposure to sovereign defaults in Europe.
Bank of America, in particular, faces concerns about whether it has enough capital to absorb mortgage-related losses.


IBM's 5 Predictions for the Future -- Biometric Data to Replace Passwords, Custom online marketing and more

In each of the past five years, IBM has come up with a list of five innovationsit believes will become popular within five years. In this, the sixth year, IBM has come up with the following technologies it thinks will gain traction. 


Chicago Lawyer Arrested for Prostitution: I Guess this Gives New Meaning to the Phrase "Getting Screwed by Your Lawyer"

You can't make this stuff up.  And my smart-alecky teaser title notwithstanding, this is a serious and sad matter. I am sure some cynics will point to the excessive cost of law school and that it is inevitable that some would be driven to extreme ends and actions.


Monday, December 19, 2011

Wither Kodak?

A U.S. arbiter for trade disputes is delaying a ruling on Eastman Kodak Co.'s high-stakes patent-infringement claim against smartphone makers Apple Inc. and Research in Motion Ltd.
The embattled photography pioneer is trying to negotiate a licensing deal it estimates could be worth up to $1 billion.
An administrative judge overseeing the two-year dispute at the U.S. International Trade Commission set a new target date of Sept. 21, 2012. The commission in Washington, D.C., had previously expected to issue a final decision by Dec. 30.


A Real Sob Story: Saab Seeks Bankruptcy Protection

Swedish automaker Saab has filed for bankruptcy after months of struggle to stay alive. Saab's owners have turned the company's assets over to a Swedish court-appointed receiver.
General Motora, Saab's former owner, had objected to a recently proposed deal under which the company would have been sold to Chinese investors including carmaker Zhejiang Youngman Lotus Automobile.


More on the King, Wood/Mallesons Merger

More on the King Wood, Mallesons merger. I note that John Shi and Nic Groffman, two partners formerly at Mallesons (John headed the China office) will be leaving for DLA Piper. The plot thickens.


Facebook the subject of "Right of Publicity" and Unfair Practices Lawsuit In California

Facebook’s practice of showing people that their friends “like” specific products could run afoul of a California law that gives both celebrities and ordinary citizens the right to control how their names and pictures are used for commercial endorsements.
A federal judge in San Jose has rejected Facebook’s bid to dismiss a case that accuses the dominant social network of violating California’s “right of publicity” statute and state unfair trade practices law.


Trial Needed to Sort Out Jay-Z's Copyright Fight

The Egyptian man who brought copyright claims over Jay-Z's "Big Pimpin'" can seek damages only for alleged infringements within three years of his lawsuit, a federal judge ruled, saying a trial would have to determine the issue of profits from live performances of the song.


Interesting Research on the Effectiveness (or lack thereof) of SOX Section 404 Internal Controls

Interestingly, the cost of SOX compliance is widely perceived as having a chilling effect on IPO's of small-cap companies and the actual de-listing of many of other small cap firms. Perhaps this "cost" may be a necessary evil to the extent we saw some broader positive impact on better controls and transparent financial reporting. But in the aftermath of the 2008 near financial collapse, and the disintegration of Lehman, AIG meltdown and more recently MF Global, can we say with a straight face that Sarbanes-Oxley is working?  Would we be even worse off without it?


Google Sued by British Telecom in New Android Patent Case

UK communications provider British Telecom (BT) has become the latest firm to sue Google over alleged Android patent infringement, claiming the search giant “willfully infringes” on six tech patents it holds. “BT brings this action to recover the just compensation it is owed” the company states in the suit filed in the US District Court of the District of Delaware last Thursday, “and to prevent Google from continuing to benefit from BT’s inventions without authorization.”


Sunday, December 18, 2011

Oral Argument heard at Ninth Circuit in U.S. v. Nosal

At stake is whether the government can maintain criminal charges and an employer can maintain a civil cause of action under the Computer Fraud and Abuse Act against an employee who steals company data by "exceeding authorized access" in violation of an employer's computer usage policies.


Some Interesting Data from Columbia University on Perceptions of Copyright Infringement and Enforcement

This is particularly relevant in light of the pending Stop Online Piracy Act (SOPA).  High-level findings of the Columbia University study include the fact that "piracy is common", with 46% of American adults have bought pirated DVDs, copied files or discs for friends or family, or downloaded music, TV shows or movies for free.


The ABA Accreditation Process, the cost of Legal Education and its Impact on the Delivery of Legal Services

One way, and certainly not the only way, to view the ABA accreditation process is that it forms a cartel insofar as it restricts supply. Here, it restricts the supply of lawyers.  Like all cartels it results in distortions in the marketplace. The market evidently could absorb this for some time but they are no longer. Law schools keep churning out grads who routinely take on $200K in debt who have job prospects that do not pay them enough to adequately service the debt.

My sense is the ABA will not change, at least not soon enough. As such, I think the best hope for innovation are those states like California or Tennessee which do not require law students to sit for the bar who go to ABA accredited schools.


U.S. Frustrated with Tokyo's Inaction on key trade and military issues, U.S. policy leaders say

This is actually a very old story, only some of the names have changed and the are now occurring in the context of a much more complex geopolitical environment.


Angela Merkel is herding cats over a cliff, says Walter Russell Mead

Here is an excerpt:

"The latest European plan to fix the euro is already falling apart, just like all its predecessors have done.  A majority of the French oppose it, and the man likely to be replace Nicolas Sarkozy in the spring 2012 election has said that it needs to be renegotiated. The countries that don’t use the euro are having second thoughts about turning over control of their national budgets to a European authority where they won’t have a veto; worse, they don’t want the Franc0-German bulldozer to use the excuse of the euro crisis to jam through a whole series of laws that would weaken the competitive advantages of countries like Poland, Hungary and Ireland."


Data Breaches Involving Payment Card Skimming at Michaels Stores results in Lawsuits

In May 2011, Michaels Stores reported that “skimmers” using modified PIN pad devices in eighty Michaels stores across twenty states had gained unauthorized access to customers’ debit and credit card information.  Lawsuits alleging claims under the Stored Communications Act (“SCA”), the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), and for negligence, negligence per se, and breach of implied contract.
Late last month, U.S. District Court Judge Charles Kocoras ruled on Michaels’s motion to dismiss. Some claims were dismissed, but others survived. The opinion presents a broad-brush survey of potential data security breach claims, with some fine detail and local color particular to this variety of criminal data security breach.


Carrier IQ Internal Investigation: It's Not Us

This week, Carrier IQ concluded an internal investigation and released a report on its findings. The company's analysis confirmed that its software does not, by itself, record users' keystrokes. Instead, the report affirmed the Carrier IQ's prior suspicions that the recording is being triggered on the handset manufacturers' end.


Payroll Tax Cut Extension to be Paid for (in part) by increase in Fees on New Mortgages and Refis

The legislation provides a two-month extension of a payroll tax cut and long-term unemployment benefits that would otherwise expire on Jan. 1. It would also delay for two months a cut in Medicare reimbursements for doctors that is scheduled to take effect on New Year’s Day. The House is expected to act on the bill early next week. Two more months of the Social Security tax cut amounts to a savings of about $165 for a worker making $50,000 a year.
To cover its $33 billion price tag, the measure increases the fee that the government-backed mortgage giants, Fannie Mae and Freddie Mac, charge to insure home mortgages. That fee, which Senate aides said currently averages around 0.3 percentage point, would rise by 0.1 percentage point under the bill. The increase will also apply to people whose mortgages are backed by the Federal Housing Administration, which typically serves lower-income and first-time buyers.
The higher fee would not apply to people who currently have mortgages unless they refinance beginning next year.


Saturday, December 17, 2011

The Anxious Generation

For those 50 and over, financial futures are uncertain. But then again, financial futures are uncertain for those 30 and under. Come to think of it, the financial future is uncertain for all of us. The one take away for those 50 and over is that the notion of retirement at age 60 or 65 is gone forever. I think for most of us, work into ones 70s or even 80s will be the norm.


Friday, December 16, 2011

Social Gaming Firm, Rock You agrees to Security Audits to End Data Breach Action

 Social gaming company RockYou Inc. has agreed to undergo two independent security audits to settle a proposed class action in California over a 2009 data breach that exposed millions of passwords and email addresses.

The proposed deal calls for RockYou to undergo two audits of its information systems security policies related to the maintenance of consumer records, according to a motion to approve the deal filed in California federal court. 

RockYou will select an independent third-party to carry out the audits...


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