In March, the US Supreme Court ruled that the Copyright Act’s First Sale Doctrine applies to copyrighted works lawfully made abroad Kirtsaeng v. John Wiley & Sons, Inc., 2013 WL 1104736.  Now, the Southern District of New York has held the first sale doctrine does not apply to resales of MP3s.  See Capitol Records v. ReDigi, 2013 WL 1286134.

ReDigi, an online music service that sells used digital music files for a reduced price, maintained that it could verify that each MP3 was purchased from a legitimate source, and required the seller to install software that prompted the seller to remove any remaining copy of the song.  The court was not persuaded, however, ruling that ReDigi infringed Capital’s rights to reproduction and distribution by creating new files.  On ReDigi’s First Sale Doctrine defense, the court stated:

 “…the first sale defense is limited to material items, like records, that the copyright owner put into the stream of commerce. Here, ReDigi is not distributing such material items; rather, it is distributing reproductions of the copyrighted code embedded in new material objects, namely, the ReDigi server in Arizona and its users’ hard drives. The first sale defense does not cover this any more than it covered the sale of cassette recordings of vinyl records in a bygone era.”

ADDITIONAL RESEARCH REFERENCES

There’s been a long and robust discussion on the digital first-sale doctrine.  Try this advanced search in secondary sources:

ti,pr(digital and first-sale)

Results include a great survey of the issue from the Journal of the Patent and Trademark Office Society by Jonathan C. Tobin:

Unlike the traditional circumstances of a first sale transfer, the recipient obtains a new copy, not the same one with which the sender began. Indeed, absent human or technological intervention, the sender retains the source copy. This copying implicates the copyright owner’s reproduction right as well as the distribution right. Section 109 provides no defense to infringements of the reproduction right. Therefore, when the owner of a lawful copy of a copyrighted work digitally transmits that work in a way that exercises the reproduction right without authorization, section 109 does not provide a defense to infringement.

This week, WestlawInsider began a series describing our editorial process.  See The Westlaw Editorial Process:

While the text of the decision is central to a practitioner’s understanding of the issues involved in the decision, the editorial enhancements transform the basic text of the case into an intelligent and integrated document.

Recent related posts include The Westlaw editorial process for Patient Protection & Affordable Care Act, parts 1 and 2. I encourage you to take a look at this series.  I think a basic understanding of how these ‘integrated documents’ come to be, is important in fundamentally understanding how legal research is currently conducted in the digital world.

As many readers may remember, Wisconsin, in early 2011, passed a law changing collective bargaining rights for public employees in the state.  The bill, WI Legis 10 (2011-2012), famously led to a round of recall elections that ultimately changed partisan control of the State Senate. Less well known was that the law was also challenged in court, eventually making it all the way to the State Supreme Court.

The case of State ex rel Ozanne v. Fitzgerald, 798 N.W.2d 436, concerned a challenge to the state’s collective bargaining law based on the state’s Open Meetings Law, W.S.A. 19.81 et seq.  The Open Meetings Law (and similar equivalents in other states) is meant to guarantee the public access to government deliberations.  The essential allegation in the Ozanne case was that the legislature did not give proper notice of the final meeting on the bill.  The Court declined to address the issue on separation of powers grounds, upheld the law, and the rest is swiftly becoming history.

That case, decided in June 2011, was very much on my mind as I read about a case currently coming to a head in Michigan.  Early in 2011, Michigan passed the ‘emergency manager law,’ which amended a pre-existing law to allow certain state-appointed financial managers new powers, including the ability to modify public sector union contracts. See MI Legis 4 (2011).   Despite differences, the Michigan law and the Wisconsin law are often brought up in the same conversation because of their respective effects on public sector unions.  See e.g 2011 WLNR 15551937.

Similar to Wisconsin, Michigan’s Bill is now also at the center of litigation that pits technical statutory requirements against the popular will.  A group is seeking a referendum on the law, but their question may never make the ballot due to font on the forms they circulated to gather signatures.  MCLA 168.482(2) requires the forms used to collect signatures for a petition to contain a heading in ’14 point font,’ though ’14 point’ isn’t defined anywhere in the law.

As two justices noted when the Supreme Court took up the case, the concept of font arose from the use of printing blocks.  See 2012 wl 2865779.  How the concept translates to the digital era will apparently decide whether or not Michigan voters get a plebiscite on their emergency manager law.

Research References

To find more on the font dispute as it’s made its way to the State Supreme Court, try the following search in MINEWS: Font & petition & emergency /3 manager.  2012 WLNR 15634213 contained some records of the actual oral arguments in the case.

The docket number for the Michigan Supreme Court case is, 145387, if you run a search for that DOCK-MI-APPSCT, the relevant docket will come up.

To find more on the Michigan law, I tried emergency /3 manager in various MINEWS and MI-CS databases, limiting results to results after the start of 2011.  To find the legislation, I had to go to the database for bills from before the current calendar year, MI-Legis-old.  Similarly, to find more on the Wisconsin law, I tried various searches using collective! /3 bargain! in similar state-specific databases, with similar date restrictions.

In a few weeks it will be spring, and we’ll have a rush of Supreme Court opinions to look forward to.  The court will marshal a good two centuries of precedent in reaching its decisions, and I’m sure we’ll see references to Marbury and to Erie, from Celotex to Twombly.  But we’ll also see a few references to a more obscure case.

U.S. v. Detroit Timber and Lumber Company, 200 U.S. 321, was decided 106 years ago this coming weekend.  Writing for a majority, Justice Brewer addressed some obscure points of law regarding the right to cut timber on public lands.  However, in rejecting a precedent proffered by one of the parties, he made the statement that would earn Detroit Timber its place in the history books: “[T]he headnote is not the work of the court…It is simply the work of the reporter…and is prepared for the convenience of the profession.”  It is for this proposition that Detroit Timber is cited in almost every decision released by the Supreme Court today:

Outside the court’s standard footnote, headnotes and case syllabi have been mentioned by the court a few other times.

Database: SCT

Search: op(head-note)

Result: 57 Documents

Database: SCT

Search: op(syllabus /s case court)

Result:  86 Documents (the extra search language is necessary to weed out unrelated education cases)

Most of these cases refer to annotations of State Supreme Courts, which, in some States, actually is “the work of the Court,” and does “state its decision.”  This rule in the States is probably what led Solicitor General Hoyt to make his failed argument from the annotations in Detroit Timber (Justice Brewer even recognizes that some States have a different rule).  He probably wasn’t the first to make this mistake, and he almost certainly won’t be the last.

Distinguishing the Court’s legal opinion from research tools can be extremely important.  Background on a particularly infamous invocation of the annotations can be found by running the following search in JLR: corporate /3 personhood /p head-note syllab!.  I saw 5 results, each of which gives a decent introduction to the history of this particular legal concept.

The court reporter who wrote the headnote into the official record of the Santa Clara decision was an adept lawyer who had ties to the railroad industry…Since only the text of judicial opinions is binding precedent, this case should not have been cited since then as the bedrock case supporting corporate personhood.

24 JENVLL 75, fn 122

Our attorney editors may be adept but they don’t have ties to the railroad industry. This 2008 video does a good job outlining how Westlaw adds headnotes. Watch our editors add headnotes at 2:58.

See Mr. Gil Grantmore’s brief history of U.S. v. Detroit Timber and Lumber Company at 5 Greenbag 157.

Detroit Timber clearly does not stand for the proposition that the headnote is irrelevant or inappropriate for citation. On the contrary, after explaining the genesis of the headnote, the Court goes on very carefully to consider its substance. True, the headnote did not carry the imprimatur of the Court. But it nevertheless seems to have been considered at least respectable persuasive authority. The common view today that the syllabus is valueless cannot be supported by Detroit Timber.

As Jill V. mentioned the other day, Hostess, makers of Ding-Dongs, Ho-Hos, and assorted other guilty pleasures, filed for bankruptcy recently.  The case is pending in the Bankruptcy Court for the Southern District of New York, under Docket numbers 7:12-bk-22051 through 22056. Hostess previously declared bankruptcy in 2004, in the Western District of Missouri.  The Docket number for that case was 4:04-bk-45814.

But even that prior bankruptcy wasn’t the first time Hostess made front page legal news.  That distinction goes to the so-called Twinkie Defense.  This is the mildly derogatory term applied to former San Francisco Supervisor Dan White’s defense when tried for the double murder of Mayor George Moscone and Supervisor Harvey Milk (some of the essential facts of the case can be found at 117 Cal. App. 3d 270).   Contrary to popular memory, Mr. White did not argue that eating a Twinkie had caused him to commit murder; he actually argued that he suffered from severe depression, which prevented him forming the requisite mens rea for homicide; his consumption of junk food was introduced merely as a symptom.  See footnote 204 in 36 USFLR 261.

The Twinkie Defense had a direct impact on California law when the legislature chose to amend Cal. Penal Code § 28 to abolish the Diminished Capacity defense and replace it with the slightly different ‘Diminished actuality’ defense.  The literal impact of this change can be found in the annotations to the current Penal Code § 28.  While Westlaw doesn’t have legislative history from California for 1982, a search for, diminished /3 capacity /p diminished /3 actual!, in the JLR database reveals 17 articles, which do a pretty good job discussing the motivation behind the change.

The Twinkie Defense had a brief return to the spotlight in 2006, when Justice Scalia mentioned it at oral argument in the case of U.S. v. Gonzalez-Lopez, ostensibly as an example of the kind of innovative thinking a good defense lawyer can do.  Less often mentioned was Scalia’s next sentence, “I would not consider the Twinkie defense an invention of a competent lawyer.” The transcript is available at 2006 WL 1134467.

For a sense of what people thought of the Twinkie Defense at the time, you can run the search, twinkie /1 defense & da(bef 1/1/1984) in ALLNEWS (11 results).  For more on Hostess’s ongoing financial troubles, try, hostess /s bankruptcy & da(aft 1/1/2004) in the same place.  And while I wish it had been me, credit for the first Bankruptcy/Twinkie defense connection must go the Editorial Board at the Hartford Courant, as revealed by simply combining the last two searches into HOSTESS /S BANKRUPTCY & TWINKIE /3 DEFENSE.

Mr. John Hithon of Alabama got an early Christmas present this year, when, on December 16, a 3 judge panel of 11th Circuit Court of Appeals reversed itself and re-instated a jury verdict that had been entered against his former employer in the case of Ash v. Tyson Foods, 2011 WL 6270741.  If this story seems familiar, you probably heard about it in the same place I did, the New York Times front page earlier this week.  If you didn’t see their write-up, it’s available on Westlaw at 2011 WLNR 26636445.

For the Times, and probably for a lot of the general public, this case was of interest because a part of it concerned whether use of the term ‘boy’ was a racial epithet, or merely water-cooler conversation.  When the Court, in 2010, held it to be mere conversation, the Plaintiff lost his discrimination claim; by holding that the racial overtones were a matter for the jury, his claim survived.

The Times noted that it is fairly rare for a Court of Appeals to reverse itself outside of the scenario of an en banc reconsideration.  I put together the following search:

sy(prior previous earlier /s opinion /s vacat! & motion moved petition! /3 re-hear!) % sy(“en banc”)

In our Court of Appeals content on WestlawNext (or CTA on Westlaw) this search finds 44 results, with Ash v. Tyson being the most recent (without the excluding the words “en banc,” the search returns 59 cases).  In the KeyCite history, these cases are noted with a straightforward ‘vacated on rehearing’ or ‘vacated on reconsideration.’   Searches like this one – within the synopsis field -  are great for users who want cases with a particular procedural posture.   Note that many cases also include Holding (HG) and Background (BG) field data. But, these fields are included in SY.  And, I actually found that searching in the Synopsis returned better results than searching the Holding field.

Field outlines for various document types can be found on WestlawNext from the Advanced Search link.  For example, see the Fields for Cases (pdf) document we pulled from the advanced search link at the cases page.

Earlier this week the protestor who threw a shaving-cream pie at Rupert Murdoch was sentenced to six weeks in jail.  Jonnie Marbles isn’t the first pie-thrower to face consequences in court.

On Westlaw.com, I ran the following search across state and federal cases to pick up other pie-throwing cases: thr*w! hit! strik! struck /s pie /100 assault battery tort disorderly abet! conspir! 

The earliest pie-throwing case shows up in 1977, and is notable for the fact that it’s not the hurling of the pie which is at issue.  In Goldfarb v. Baker, 547 S.W.2d 567, after a pie was thrown at a professor, the professor threw the student who he believed responsible out of the classroom, and the student brought a claim against the professor for “outrageous conduct.”  The student’s case was dismissed.

In Geraci v. St. Xavier High School, 1978 WL 216591, the court found in favor of a private school after a student was expelled for his role in a pie-throwing conspiracy.  In that case, the student induced a friend to throw the pie, although he later said that he didn’t think the friend would go through with it.  The student’s conspiring role was enough, however, to find that he had violated the school’s code of conduct and thereby breached the contract with the school.

In another twist on the pie-throwing conspiracy, in State of Connecticut v. Diorio, 529 A.2d 1320, the court upheld a parent’s conviction for breach of the peace, for hiring a clown for her daughter’s junior-high graduation to throw a pie in the face of the dean of students.  The clown later testified against the parent at trial.

And then there’s the political pie-throwing: 

State of Ohio v. Conliff, 401 N.E.2d 469, concerns a fellow who was acquitted by a jury of assault after throwing a pie at the governor of Ohio.  (Interestingly, that’s another case where the throwing of the pie was ancillary to the case; the issue on appeal was whether the pie-thrower was subject to criminal contempt for saying to the judge, off the record but in the course of the proceedings, “Are you ready for your ounce of flesh now, your Honor?”)

Another pie-thrower did not get off so lightly in State of Minnesota v. Greenberg, 2000 WL 781092.  The court found sufficient evidence for convictions for intimidating a legislator and disorderly conduct, and that pushing a pie into someone’s face is not a form of constitutionally-protected speech.

The U.S. District Court for the Northern District of California recently issued its decision rejecting a motion to vacate the the court’s judgment that California’s “Proposition 8″ ban on same-sex marriage is unconstitutional.  The motion to vacate asserted as grounds that the the presiding judge should have recused himself from the case, based on his disclosure after his retirement from the bench that he is homosexual and has been in a same-sex relationship for the last 10 years. 

Specifically, it was alleged that this long-term relationship gave rise to some form of non-pecuniary interest or inference of impartiality requiring recusal or disqualification.  This seems to be a novel issue in the jurisprudence of recusal, and the court offered some interesting language in its decision.  (You can see the full text on Westlaw at 2011 WL 2321440.)

After a review of existing case law under FRCP 455(b)(4)*, the court “adopt[ed] the following legal conclusion: In a case that could affect the general public based on the circumstances or characteristics of various members of that public, the fact that a federal judge happens to share the same circumstances or characteristic and will only be affected in a similar manner because the judge is a member of the public, is not a basis for disqualifying the judge under Section 455(b)(4).

The court emphasized that it is a mistake to say that a member of a minority has a greater interest in safeguarding civil rights than the majority: “In our society, a variety of citizens of different backgrounds coexist because we have constitutionally bound ourselves to protect the fundamental rights of one another from being violated by unlawful treatment. Thus, we all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right.”

The court also found that a possible future interest in marrying is too tenuous or indeterminate to require recusal under the statute: “… to base a recusal standard on future subjective intent to take advantage of constitutional rights is to create an inadministrable test, frustrating congressional efforts to protect judicial integrity with a clear, mandatory recusal statute.”

Responding to the movants’ suggestion that the judge’s prior non-disclosure might lead that infamous reasonable person to question his impartiality, which would require recusal under FRCP 455(a), the court observes, “… silence is by its very nature ambiguous, and thus is open to multiple interpretations. Another, and equally reasonable, way to interpret that silence is suggested by Ninth Circuit caselaw, which holds that it is to be presumed that any judge is impartial.”  The court goes on to say, “Beginning from the presumption that judges are impartial, the Court postulates that a judge who is silent in such a situation has already, sua sponte, considered the question of recusal and has determined that he need not disqualify himself, because no reasonable observer would conclude that his impartiality could reasonably be questioned.”

Later, the court goes to far as to observe that the judge in this case, “like all judges, had a duty to preserve the integrity of the judiciary. Among other things, this means that if, in an overabundance of caution, he were to have disclosed intimate, but irrelevant, details about his personal life that were not reasonably related to the question of disqualification, he could have set a pernicious precedent.”  (One can only imagine what personal details of his or her life a judge might be contemplating when reading these words.)

Already notice of appeal has been filed, while the appeal of the underlying decision on Proposition 8 is still pending.  Certainly we have not heard the last of this issue.

* Our search for 455(b)(4) in the FED9-ALL database, yields 35 cases.

Watching “The Social Network” lose out to “The King’s Speech” for Best Picture, I couldn’t help but wonder how Cameron and Tyler Winklevoss, would-be twin inventors of Facebook, reacted to the news.  Were the Olympic rowers disappointed that the movie that made them famous didn’t walk away with the big prize?  Or, was the announcement some cause for relief, a signal that their nearly decade long pursuit of justice against Facebook wonderkin, Mark Zuckerberg, might be moving out of the public eye and eventually wind down.  Either way, my guess is that emotions remain high in the boathouse as the Twins await yet another court ruling in the epic battle over Facebook, one that has the potential to reignite the fight.

For those who have yet to see the movie, the Winklevoss twins (the “Twins”), together with their Harvard classmate, Divya Narendra, allege that they had the idea for Facebook, and that Mark Zuckerberg stole their idea.  Zuckerberg and Facebook deny the claims, and for their part, allege that the Twins and Narendra infiltrated their system, took thousands of e-mail addresses, and then spammed them.  After years of vigorous fighting worthy of all the Hollywood attention, the parties entered into a mediation driven settlement in which Facebook agreed to purchase ConnectU, the Twins’ failing competitor site, with shares of Facebook stock — a deal worth in excess of $160 million because of Facebook’s soaring value.

In a remarkable demonstration of — well — “True Grit”, the Twins have now asked the Ninth Circuit to undo the settlement.  They claim that, despite a bevy of lawyers at their side during the mediation, they were duped about the actual value of Facebook stock they were to receive as part of the settlement.  If the Court agrees, the Twins will be $160 poorer, the scorched earth litigation will resume in earnest, and if not already underway, a team of Southern California screenwriters will begin blocking out drafts of “The Social Network II.”

Overturning a settlement is no easy business.  Most who try argue, as the Twins have, that either the settlement was too indefinite to have resulted in a meeting of the minds or that the agreement was the product of fraud.  With regard to the agreement itself, there is typically a “presumption of enforceability” followed by a review of whether the terms are “sufficiently certain.”  As to fraud, Ninth Circuit courts require a showing of a duty plus a level of misconduct that “substantially impeded” the movant’s ability to act.  No easy feat.

One issue specific to the Facebook litigation is the Twins’ novel claim that the settlement should be unwound because Facebook committed securities fraud during the mediation.  The argument is that Facebook was guilty of insider trading in the mediation process because it failed to volunteer all the information it had regarding the valuation of the company.  Ultimately, the Twins relied upon their own research, namely a Microsoft press release, in coming up with a $36 per share value.  They claim that Facebook withheld information that would have disclosed a value closer to $9 per share.  The Twins claim that had they know that information, they would never have settled for so few shares.   

The securities claim will hinge on whether the Twins properly pled a securities claim and on whether Facebook had a duty to volunteer any information bearing on the value of the stock.  One wonders, for example, why such a duty would arise in the course of mediating such contentious litigation.  Oh, and there is the matter of the release signed by the Twins absolving Facebook for “any future fraud claim.”

For those interested in researching cases regarding settlement agreements, I ran a WestSearch on WestlawNext in the Ninth Circuit across all content sets for the following: enforce settlement agreement.  The result yielded the most relevant Ninth Circuit opinions on the topic including:

Callie v. Near , 829 F.2d 888 and William Keeton Enterprises, Inc. v. A All American Strip-O-Rama, Inc., 74 F.3d 178.

A click on secondary sources revealed several articles directly on point including:

 “Reviewing Agreements Reached During Mediation,” a chapter in Cole’s Mediation Law treatise. (MEDIATION § 4:13); and

“Disputing Irony: A Systematic Look at Litigation About Mediation,” a detailed Harvard Negotiation Law Review Article.  (11 Harv. Negot. L. Rev. 43)

A more directed boolean terms and connectors search might look something like:

((settlement mediation /4 agreement) /20 enforc!) and fraud! (sufficiently /4 certain definite) and (fail! +3 disclose) (withhold withheld +3 information)

For those interested in the outcome of the Ninth circuit decision in Facebook, set up a Docket Track in the DOCK-CTA9 for docket number 09-15021.  When the decision is filed, you will be e-mailed an alert. 

Other briefing of interest in this case:

Brief of Appellant/Cross-Appellee Facebook – 2010 WL 5625003

Brief of Appellee ConnectU (the Twins) – 2010 WL 5625005

Appellant’s Reply Brief – 2010 WL 562004

The U.S. Court of Appeals for the D.C. Circuit recently affirmed the contempt conviction of a defendant who directed an obscenity at a judge during a sentencing hearing.  The opinion is available on Westlaw at 2010 WL 5299865.  If you click that link, you’ll notice that the title of the case is In re Sealed Case because, naturally, the case has been sealed.  This brings to mind a research problem I’ve encountered a few times.

We often get calls from individuals looking for a specific case about which they have limited information.  Perhaps the most frequent such call is from a person who knows the name of at least one party, but may not know the citation, jurisdiction, or date of the opinion.  The easiest method to find such a case is to perform a party-name search using the Title field.  For example, if you know that one party’s name is Smith and the opinion was issued by a judge in the Federal District Court for the District of Minnesota, you can run a search in the DCTMN database for ti(smith).  However, if the case you’re looking for has been sealed, that search will not return it, because Smith’s name will not appear in the case title.  You may be thinking, “if the case is sealed, how would I know any of the parties’ names to try that search in the first place?”  For every sealed case, there are likely numerous individuals who are aware of the names of the parties.  If you are one of those people, or asked to find the case by one of those people, your first instinct will likely be to search by the parties’ names.

Given the possibility of a case being sealed, it might be worth running a search using information other than the parties’ names when the case you’re looking for cannot be found via a party-name search.  For example, knowing the defendant’s name would do us no good in finding the sealed case linked above, but a search in the CTADC database for contempt /s obscen! vulgar! will retrieve the case.

It is relatively rare that this will happen (a search in ALLCASES for ti(sealed) returns only about 500 documents, not all of which are sealed cases), but I have had at least a couple calls in which we have discovered, after several failed party-name searches, that the case we were looking for had been sealed.