The Wall Street Journal’s Law Blog yesterday had a story regarding a federal inmate and frequent frivolous litigant Jonathan Lee Riches.  It seems that the United States District Attorney for the Eastern District of Kentucky has attempted to obtain an injunction preventing Mr. Riches from filing documents in any court unless a  federal judge determines that they have a basis in law and fact.

Mr. Riche’s history of filing lawsuits that are later dismissed as frivolous is quite long.  His filings are often hard to understand, and his list of parties are also sometimes confusing.  A search of:

AT(LEE-RICHES) & PRO-SE INMATE-MAIL CORRECTIONAL-INSTITUTION

Returns over 2,000 results in DOCK-ALL, although in fairness they may not all be Mr. Lees cases, they are simply anything with Lee Riches in the attorney field with pro se, inmate mail, or correctional institution elsewhere in the document.  One docket in particular stands out (and has a new motion filed as of July 30th 2010) as having a very strange mix of parties, some of the extremely numerous names:

We start out with the usual individuals:

GEORGE W. BUSH INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED STATES OF AMERICA

RICHARD B. CHENEY VICE PRESIDENT

CONDOLEEZA RICE SECRETARY OF STATE

No real surprises there for a case filed in 2006.  However the list of parties also contains foreign governments and celebrities:

KINGDOM OF SAUDI ARABIA

JEWISH STATE OF ISRAEL

THE VATICAN

JERRY WEST VICE PRESIDENT OF THE LOS ANGELES LAKERS

TONY DANZA

ANNA NICHOLE SMITH

BRAD PITT AND HIS ADOPTED SON MADDOX PITT/JOLIE

SADDAM HUSSEIN

But more strangely included are a large list of inanimate objects, geographical places, long dead historical figures, wholly fictional product spokespeople and sometimes ephemeral concepts that have no physical existence.  Some examples:

VIENNA CONVENTION

MAGNA CARTA

TSUNAMI VICTIMS

FRUIT OF A-LOOM [sic.]

PLATO

MEIN KAMPF

NORDIC GODS

THE DA VINCI CODE

MT. RUSHMORE

GREEN BAY’S LAMBEAU FIELD

MING DYNASTY

GANGS IN HONG KONG

THE APPALACHIAN TRAIL

THE COLOSSUS OF RHODES

BETTY CROCKER

LIBERTY BELL

This is a very small sampling of the parties.  You can find the entire list by clicking the link above.

The 3rd Circuit on Tuesday September 7th handed down a much anticipated decision  dealing with the Governments attempts to get cellular network positioning information  without a warrant (2010 WL 3465170).

The dispute stems from the Governments attempts to obtain cell site location information (CSLI)  regarding a particular subscriber under the Stored Communications Act (18 U.S.C.A. §§ 2701 et seq.).

CSLI is information that cellular providers maintain regarding the location of their customers when they make a call.  Whenever a cellular customer makes a phone call, the cellular providers record what tower transmitted the call, as well as what “face” of the antenna was used to receive the call.

The police argue that this is valuable information for proving that individuals were at certain locations at particular times.  In this case, they requested the information under the Stored Communications Act provision that allows the Government to obtain the information by getting a court order merely upon a showing of the information’s relevance and materiality of the data to an ongoing criminal investigation.  This Act relieves the Government in certain situations of having to get a warrant and show probable cause.

In this case, the lower court refused to grant the order, and in a rare occurrence the order denying the request was joined by the other judges in the district.  The lower court held that the Stored Communication Act did not apply and that the CSLI records could only be obtained upon a showing of probable cause.

The 3rd Circuit here decided that the Stored Communications Act does not necessarily require that Probable Cause be shown in order to obtain this data.  Having decided that the lower court’s decision would not stand, much of the later decision dealt with the Government’s contention that if it met the requisite showing under the Stored Communications Act then the Magistrate must grant the order.  The 3rd Circuit did not agree, in addressing the legislative history they concluded that the magistrate might have discretion to require probable cause and a warrant under some circumstances.  The 3rd Circuit then remanded to the lower court for further consideration.

For more on the Stored Communications Act, see Chapter 9 of Data Security and Privacy Law: Combating Cyberthreats; specifically,  DATASPL § 9:17 et. seq.

Much has been written about a request by Netflix for rehearing en banc by the Federal Circuit.  Netflix would like to be reheard en banc regarding the recent denial of their request for attorneys fees incurred defending a patent claim (2010 WL 1293379). 

Netflix and BlockBuster among others were sued by Media Queue for supposed patent infringement.  The Northern District of California granted summary judgment for Netflix. 

However the US District Court also denied the request by Netflix for over $1,000,000 in attorneys fees.  Netflix appealed this decision to the Federal Circuit, and after the Federal Circuit at first sided with Media Queue, Netflix has moved for rehearing en banc (672 F.Supp.2d 1022). 

Netflix would like the court to adopt a more liberal standard for awarding attorneys fees, it is hoped that this will act as a deterrent to future baseless patent claims.  Netflix would have the courts apply an “objectively reckless” standard for awarding attorneys fees.

Depending on what the Federal Circuit decides to do with this case, it could end up being very important precedent.  You can set up a Docket Alert to track developments in this case with the docket number 10-1199.

//

The 9th Circuit recently considered the Stolen Valor Act, and struck it down as a facially invalid intrusion upon the 1st Amendment.  The act (18 USCA 704(b)) criminalizes a person falsely representing themselves as having received an award or medal for the Armed Forces.

The Defendant, Xavier Alvarez, had stated in front of a Water District Board of Directors (of which he was a member) the following:

“I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.”

As the court stated, this was all a lie. The defendant never served in the military.  For reasons the 9thCircuit did not go into, the FBI was tasked with investigating Mr. Alvarez’s statements.  Mr. Alvarez subsequently was charged and pled guilty to violating the Stolen Valor Act.  He then appealed to the 9th Circuit. 

The 9th Circuit determined that false statements of fact in most circumstances do enjoy 1st amendment protection.  The court then went on to apply strict scrutiny to 18 USCA 704(b) and (somewhat predictably) found that the provision failed the strict scrutiny test and was facially invalid.

//

A frequent task Summer Associates have been faced with is trying to determine what precisely has happened with federal statutes over time.  On Westlaw we have the United States Code Annotated back through 1990 (USCAXX, XX= 2 digit year), but it is important to note that we also have United States Public Laws (US-PL) , and The United States Statutes at Large (STATLRG)back to the creation of the United States.  Many of the Acts in the Public Laws and Statutes at Large are not codified, of course.

The Statutes at Large can be interesting from a historical perspective as well. A couple of interesting acts I have run across include:

• Mary Todd Lincoln was granted the Franking Privilege –  14 Stat. 3  (the Franking Privilege entitles you to free postage). 
•  Original pay rates of Congress – 1 Stat. 70  were $6 per day, but only days that they attended!
• The President’s pay rate –  1 Stat 72 ( 25,000 which would be $628,000 in 2009 dollars using the Consumer Price Index Method). 
• As well as the first secret society incorporated by an Act of Congress in 1893 28 Stat. 96, the Knights of Pythias.

//

ABC News recently posted an article dealing with audio recordings and the police.  This is a trend that has garnered much attention lately, essentially the states wiretap laws break down along a couple of lines, those that require both parties consent before recording a conversation, and those that require only one parties consent (like the federal law). 

In some states police have been using statutes that require both parties consent to record a conversation to arrest and charge individuals who have audio recorded encounters with the police.

When looking for statutes such as these, it can very often be hard to find the correct sections.  We may know the topic of the statute, but not any terms that are necessarily going to occur within the section.  For this type of inquiry the statute index is the best. 

On Westlaw, if you go to the search window, or table of contents for a statutes database, you can click “Statutes Index” on the upper right.  This is different from the table of contents because it is a topical organization of the statutes, if you look under “Eavesdropping” or “Wiretapping” for instance you should be able to find these statutes that are cited as preventing audio recording. 

If you are interested in a 50 state survey that breaks down every states wiretapping laws, you can find a comprehensive breakdown here in the 50 state surveys database.

//

We have had many Summer Associates contact the Reference Attorneys asking how to limit their searches to a particular court.  Westlaw does has very granular case law databases — meaning that you can always get to a particular state, or US District Courts within a state.  If you need to isolate your results to a particular court within that state, you will need to add a court restrictor to your search. 

The Reference Attorneys are always available to help you put together a court restrictor, but if you are the kind of person who wants to have the information yourself, you can print out a free user guide.  It is entitled “Research Tips for Case Law“, and will teach you how to create a court restrictor for almost any particular court.

We have hundreds of User Guides, all of which can be downloaded for free, and sometimes you can get a free copy shipped to you as well.  You can find those user guides here.

One last note regarding court restrictors.  On WestlawNext they are entirely unnecessary!  When searching on WestlawNext you can limit your search to any court you would like simply by checking appropriate boxes.  If you are interested in learning more about WestlawNext, you can take a tour here.

//

Summer Associates are some of the most devoted employees one could ever find.  Ready, willing and able to work long hours until the wee hours of the morning on difficult issues.  

While from time to time you might take a coffee break, longer lunch break, or perhaps even an internet break, rest assured that no matter how you may choose to recharge at work it cannot end as poorly as it did for one Donald R. McClendon.  

Mr. McClendon was employed upon a ship in dry dock when he sustained injuries to his lungs.  The injuries stemmed from inhalation of mercury vapors.  The mercury was not a byproduct of his job but rather his hobby, namely alchemy. 

You see while on break Mr. McClendon felt compelled to use his free time to perform an experiment whereby he combined a potato, mercury and an oven in an ill conceived, and ultimately unsuccessful attempt to transmute the concoction into gold.  

Although the ship was in dry-docking at the time, Mr. McClendon attempted to recover under the Jones act.  His Jones act claim was perhaps unsurprisingly as unsuccessful as his alchemical experiment. 

The decision linked and described above was found through West’s Headnote of the Day.  West’s Headnote of the Day is a daily email you can sign up for (it is free), and each day you will get a headnote from a case that is always interesting and sometimes hilarious.  You can sign up for the Headnote of the Day here.

//

The Supreme Court on Monday, June 29th 2010 in McDonald v. City of Chicago, Ill., — S.Ct. —-, 2010 WL 2555188 determined that the recently recognized 2nd Amendment individual right to own firearms would be incorporated against the states under the 14th Amendment.

This individual right to own firearms was very recently recognized by the Supreme Court in 2008 in District of Columbia v. Heller, 128 S.Ct. 2783.  Heller has been criticized in some circles for not laying out a test regarding this right, the Supreme Court did not indicate whether it was strict or intermediate scrutiny for example, and in McDonald the court refrained from deciding a test once again. 

McDonald is a quite straight forward decision, and the majority opinion at least is concerned almost exclusively with whether the 2nd Amendment is incorporated to the states under the 14th Amendment.  The Supreme Court held that it would be incorporated against the states, and reversed and remanded the Court of Appeals decision that Chicago and Oak Parks gun control ordinances were constitutional.

Given that the court declined once again to delineate a test, yet extended the newly recognized 2ndAmendment individual rights  to the states, now might be a good time to set up a Keycite Alert on Heller, 128 S.Ct. 2783. 

If you set up a Keycite Alert, you will get any new decision that cites to Heller emailed to you.  Since state laws and regulations are now subject to a 2nd Amendment challenge without any very meaningful guidance, there should be some interesting new arguments on the horizon challenging state firearms laws.

Additionally, West has a fantastic treatise on Westlaw dealing with all firearms issues, the Firearms Law Deskbook (FALDB), this is a peerless resource for practically any legal issue regarding a firearm.  Although it is not current enough of course to have this decision within it, it does have an extensive write-up on Heller to get you up to speed if this is a new area of interest, or if you just need a refresher.

//

We have had some calls very recently regarding the new Joint Strategic Plan on Intellectual Property Enforcementannounced by Victoria Espinel (sometimes called the Copyright Czar). 

One focus of this new report is Russia and its apparent tolerance of commercial file sharing websites.  These websites are located within Russia, but sell copyrighted material around the world purportedly under Russian copyright law. 

This activity has earned Russia a place on the Office of the United States Trade Representatives “Notorious Market List” of countries that are allowing violations of international copyright law. 

A particular facet of Russian Copyright law has in the past been of particular concern to the Recording Industry of America (RIAA), the Motion Picture Association of America (MPAA) and the United States Government. At least one reading of Russian Copyright law indicates that there is a compulsory license whereby anyone can sell a copyrighted work as long as they pay compensation under a license obtained from the Russian Government. 

 This compensation is paid to the Russian Organization for Multimedia and Digital Systems (ROMS).  The compensation generally amounts to 15% of sales, it is then distributed by ROMS (although the recipients often decline to accept it) to the copyright holders. 

 These Russian Copyright principals have been exploited by a spate of gray market websites that operate out of Russia under these compulsory licenses.  Essentially they set up shop and sell unprotected MP3s (and more lately Hollywood feature films that are still in the theaters) to anyone, anywhere who will pay the very modest fee to download from their library.  There are websites operating out of Russia right now that sell songs to individuals in the United States for 9 Cents a song.

The first website to gain international notoriety using this business model was allofmp3.com (now defunct).  Allofmp3.com encountered many legal difficulties.  There was a lawsuit filed in the Southern District of New York for over 1.5 trillion dollars, although pressure brought to bear on the Russian government by the United States is often credited with causing the website’s closure .

The business model of selling the work of others using Russian copyright law to an international audience has not disappeared however.  Many other websites exploiting this same interpretation of Russian law have come into being in the wake of the demise of allofmp3.com, a list of which can be found on Wikipedia.

Westlaw does not carry Russian statutes.   We do have a couple of treatises that have a great deal of information regarding Russian intellectual property law.  The two treatises are Corporate Counsel’s Guide to Doing Business in Russia (CCGRUSSIA) (there is also a Corporate Counsel’s Guide for China), and Copyright Throughout the World (COPYWORLD).  Copyright Throughout the World has a very detailed look at Russian Copyright law in Chapter 30.