Author Archives: ligitsec

239 F.3d 1004 (9th Cir. 2001)

Napster Was Here And Then Gone But Its Lessons Remain

Napster was the name given to 3 music-focused online services and pioneered peer-to-peer file sharing. Emphasizing the sharing of audio (digital) files, the format used the MP3 format.

When the company ran into legal problems centering on copyright infringement, operations stopped and Napster was acquired by Roxio. In its reincarnation, Napster morphed into an online music store until it changed hands agon on December 1, 2011.

Founded by Shawn Fanning and Sean Parker, the service started operating in June 1999. The technology permitted persons to share their music files with other participants easily and within the site.

Before Napster, there were already other networks which distributed files across the Internet. IRC, Hotline and Usenet were the three biggest players. Napster found its niche by specializing in MP3 files and providing a user-friendly interface. At its zenith, Napster claimed over 80 million registered users.

College high-speed networks became overloaded, and many schools blocked Napster’s use.

Metallica found a demo of their song, “I Disappear,” was available on Napster even prior to official release. Radio stations throughout America played Metallica’s song, and the group found their entire catalog of studio material was available as well.

On March 13, 2000, the group filed a lawsuit against Napster and a month later Dr. Dre, a rapper, filed a similar lawsuit.

In March 2001, Napster settled each suit and was shut down by the Ninth Circuit Court of Appeals.

A&M Records, and other recording businesses, sued Napster on grounds of vicarious copyright infringement. Napster lost then case and appealed.  The court laid out some guidelines for continued use which Napster failed to follow. In July 2001, the service was closed and a year later announced it was bankrupt.

Streisand Effect

The Streisand effect is a phenomenon whereby an attempt to hide, remove, or censor a piece of information has the unintended result of publicizing the information more widely, usually facilitated by the Internet. It is a reflection of psychological reactance, wherein once people are aware that some information is being kept from them, their motivation to access and spread it is increased.

It is named after American entertainer Barbra Streisand, whose 2003 effort to suppress photographs of her home in Malibu, California, inadvertently drew more public attention to it.

On December 7, 1999, the Recording Industry Association of America filed against Napster. The plan backfired as the service grew bigger as the trial gave the service huge publicity. Soon, millions flocked to it.

An injunction was issued on March 5, 2001 which ordered Napster to prevent copyrighted music from being traded.

Napster appealed and told the court it had developed the technology to block the transfer of 99.4% of infringing material.

The court told Napster’s attorney that 99.4% was not good enough.

The Takeaway

Napster shut down its network in July 2001 in order to obey the injunction. Two months later, Napster agreed to pay music creators and copyright holders a $26 million settlement and ultimately was sold to Bertelsmann, a German media firm, for $85 million.

Complaints About Lawyers & Judges – How To File A Complaint Against A Lawyer in NY

If you believe a lawyer may have violated the Rules of Professional Conduct, you can write a letter to the appropriate Committee or fill out and submit a form available from their websites.

The form or letter should be as clear, specific and detailed as possible when explaining your complaint. The materials in your complaint should include the names, phone numbers and addresses of you and your attorney as well as copies of any pertinent documents, papers, and other information connected to the complaint. After a complaint is filed, it may be updated with new evidence. If new evidence becomes available after a complaint is dismissed, the complainant may ask that the complaint be re-evaluated.

If the lawyer’s office is located in Manhattan or The Bronx, a complainant should contact:

Departmental Disciplinary Committee
Supreme Court, Appellate Division
First Judicial Department
61 Broadway, 2nd Floor
New York, New York 10006
(212) 401-0800, fax: (212) 401-0810

The Disciplinary Committee’s complaint form can be found here.

If your lawyer’s office is located in Brooklyn, Queens or Staten Island, the appropriate committee is:

Grievance Committee for the
Second, Eleventh, and Thirteenth Judicial Districts (Kings, Queens, and Richmond Counties)
Renaissance Plaza
335 Adams Street Suite 2400
Brooklyn, New York 11201
(718) 923-6300

The Grievance Committee’s complaint form can be found here.

Connecticut Gun Control Case Litigation Watched Closely In New York

Benjamin Wheeler was six when he died in the Sandy Hook Elementary School massacre. His parents, David and Francine, are now plaintiffs in a lawsuit against Remington, the maker of the gun used in the mass shooting.

Since the shooting, David had spoken in front of state legislators, petitioned Congress and sat with his wife while she shared the microphone with then-President Obama. She pleaded for revisions to the country’s gun laws.

The families of the victims are listening as attorneys lay out in Connecticut’s Supreme Court their reasoning that companies manufacturing and selling military-style weapons should bear responsibility.

It’s not just Connecticut residents that are watching the litigation, people across the border in New York are interested as well.

A Novel Approach

The attorneys are using a novel strategy which could puncture the shield created by federal law protecting gun companies from litigation. The same rule has stymied numerous lawsuits after weapons were used to commit crimes.

Supporters of gun law reform think if the courts clear the path for a jury trial, gun companies’ internal communications would survive. Revealing internal communications would provide a damaging glimpse into the gun industry and how it functions. A legal roadmap for survivors and relatives of gun victims in subsequent mass shootings could be charted as well.

Litigation

Litigation means merely the process of taking legal action. Nothing more. Nothing less.

So far federal law forbids survivors or relatives of deaths by a gun from suing the gun manufacturer. In serving the families of individuals killed in Newtown, Wheeler said, “It doesn’t make any sense at all these products being free from liability.”Mass shootings in the nation have typically been attended by a blizzard of legal work, but suits made against gun makers have failed because of the high bar put in place by Congress.

In 2015, after massive spending by the gun lobby, Congress enacted the Protection of Lawful Commerce in Arms Act. The act distinctly limited lawsuits against gun manufacturers and sellers and granted protection from liability when a weapon is employed in a crime.

The law does have a loophole allowing lawsuits for sales and marketing which violate state or federal laws.

Negligent Entrustment

Negligent entrustment occurs when a gun is irresponsibly provided or sold to somebody who poses an unusual danger of misusing it. Although negligent entrustment has been used with success in suits against gun dealers, the current Newtown shooting lawsuit is the initial time the scope has broadened to include a weapon’s manufacturer.

Battlefield Weapon In Civilian Hands

The current litigation between heard by the Supreme Court argues since the AR15 was produced for America’s military as a battlefield-grade weapon, gun corporations should never entrust the firearms to unqualified and unskilled civilians.

While in a strictly legal sense, the case’s outcome would establish little precedent beyond Connecticut, experts in New York are carefully watching the situation unfold.

Despite gun lovers attempting to use Chicago as a prop to bolster claims that gun control laws do nothing to limit gun violence, the truth is quite the opposite.

New York has sterner gun laws than Chicago, and The Big Apple’s murder figures are dropping to historic lows.

Those details don’t fit the pro-gun tale. To use The Empire State as a talking point, gun lovers would have to agree that rigorous gun laws have an impact on homicide rates.

Breastfeeding Mom’s Lawsuit Against Delta Settles

Changing Attitudes About Moms Who Breastfeed In Public

Emily Gillette was kicked off a Delta Connections flight in 2006 because she wouldn’t cover-up with a blanket while nursing her one-year-old daughter.

Gillette had been setting in the window seat wither her husband next to her in the aisle seat. A flight attendant gave her a blanket, which Gillette declined. Nursing Mom was then escorted off the plane, sparking “nurse-ins” at Delta counters through the country.

The Santa Fe, New Mexico resident filed a complaint with Vermont’s Human Rights Commission. Gillette also filed a lawsuit for unspecified compensatory, and punitive, damages.

Now the suit is over, the settlement amount redacted from the agreement and Freedom Airlines apologized. Delta chose not to include a statement in the settlement but did say it supports a mother’s right to breastfeed on its aircraft.

Starbucks

Gillette’s case wasn’t the only time a nursing mom has been called out, but in a Starbuck’s incident it paid off with free coffee.

Julia was visiting New York City when she stopped by a Starbucks to grab a badly needed break from doing the tourist thing. When her five-month old son started whining, she fed him at the counter.

With the temperature hoving in the high 90s, she had no intention of covering up. Another cafe customer, a middle-aged woman, complained, loudly, that breastfeeding in public was ‘disgusting’ and told the barista to deal with the situation.

The barista smiled, fixed a Ultra Caramel Frappuccino and took it to the young mother. He also handed her a voucher for a free drink during her next visit.

Even Idaho Has Changed

American moms have the right to breastfeed wherever and whenever their baby is hungry. Until this year, Idaho was the only state with no breastfeeding protections. Now that has changed.

All 50 states have laws protecting a mother’s right to breastfeed in public.

The American Academy of Pediatrics encourages women to breastfeed and is working to raise the breastfeeding rates in America. A growing body of evidence shows breastfeeding provides optimal nutritional and immune system benefits including reduced risk for asthma, obesity, type 2 diabetes and sudden infant death syndrome.

Attitudes like that of Delta and the middle-aged woman in the New York starbucks are changing. But many persons still don’t understand the rights mothers have to feed their infants in public.

What Can A Mom Do?

What can a mother do if approached by someone who discourages her from public nursing?

“Remember the law protects your right to feed your baby,” says Dan Kabzan. “Moms can breastfeed at bus stops, restaurants, the public pool and anywhere else they need to.”

The Takeaway

As Emily’s story shows, existence of legal rights, like those provided by Vermont, don’t guarantee societal support.

New Yorkers Say Goodbye to Floating Park

It seems that some New Yorkers hate things that float. An innovative and ambitious plan to erect a floating park on the Hudson River just off 13th Street West turned out to be a big letdown.

The floating park known as Pier 55 was supposed to be an undulating platform that would have stood on the pilings in the Hudson River. The developers had planned for a lush landscape dotted with stages for dance, music, and theater. It was nicknamed Diller Island because of the exorbitant costs of nearly $250 million. The funding was to be provided by media billionaire Barry Diller and his wife, Diane Von Furstenberg, a premier fashion designer in the nation.

Unfortunately, the floating park will remain a dream. Mr. Diller stated last week that he was closing down the project because of increasing costs, way beyond the initial estimate. In addition, he also has had to deal with never-ending lawsuits. He mentioned that while many New Yorkers were with him on this project, a select few were bitterly opposed and had used the legal system to make his plans near impossible.

The battle was between two mega-rich people; Diller versus Douglas Durst who is a New York real estate tycoon. Mr. Durst who was ferociously opposed to the plan of Diller Island and he had the money to back up his opposition. His primary objection was that all the planning for Pier 55 was conducted in secrecy and the entire idea was designed to be nothing but a playground for the filthy rich. He also stated that this monstrous island would also harm the marine life in the Hudson.

The project did have ample support from the Army Corp of Engineers and New York City officials who had already approved permits for such a construction. Both the Governor and Mayor were also in support of this project.

Mr. Diller argued against this allegation that Pier 55 would have been a playground for the super-rich. He pointed out that in the agreement with the city, at least half the theater performance was going to be set at low prices and some would even be free so that the average New Yorker could attend.

However, for now, the plug on Pier 55 has been pulled out. Some believe that in future someone else with money may reconsider the same project. But one thing is for sure: the local government has no money for such a project.

Chicago to file federal lawsuit over sanctuary cities threat

Chicago will keep fighting President Donald Trump’s immigration policies with a federal lawsuit alleging it’s illegal for the federal government to withhold public safety grants from so-called sanctuary cities, Mayor Rahm Emanuel announced Sunday.

The mayor said Chicago won’t “be blackmailed into changing our values, and we are and will remain a welcoming City.”

The lawsuit will be filed Monday.

Officials said there are new qualifications for a public safety grant requiring cities to share information with federal immigration authorities. City officials allege those qualifications are unconstitutional.

Chicago received about $2.3 million in such grants last year, which have been used for buying police vehicles.

Chicago is being helped by two outside law firms on a pro bono basis.

Federal officials have threatened to withhold federal funding for sanctuary cities, saying they don’t comply with federal laws.

Asked to comment on Emanuel’s statement, U.S. Department of Justice spokesman Ian D. Prior said via email: “In 2016, more Chicagoans were murdered than in New York City and Los Angeles combined. So it’s especially tragic that the mayor is less concerned with that staggering figure than he is spending time and taxpayer money protecting criminal aliens and putting Chicago’s law enforcement at greater risk.”

Copyright 2017 The Associated Press. All rights reserved.

Celebrate Love Litigating Lawyers Day With Things You’ll Never Hear a Lawyer Say

Happy “Love Litigating Lawyers Day.” Yes. No matter how unpopular lawyers are, everyone wants to have ‘their’ day.

The origin of LLLD is unknown, but LLLD was created to honor the contributions of lawyers in America.

The best way to celebrate the day is to realize the importance of attorneys in their role of upholding society.

To celebrate, it may be a good time to reflect on things you’ll never hear a litigating lawyer say — out loud.

Win The Lawsuit And Wind Up With Nothing

Attorneys don’t like to talk about it, but federal taxes easily can wipe out much of the money won in civil lawsuits. Bodily injury suits are an exception, but you’ll still have to pay federal taxes on the part that goes to your lawyer. The three exceptions are Alabama, Michigan, and Texas where the federal appeals court has sided with taxpayers.

A sales manager in a midwestern state settled a discrimination case against her employer for $150,000 in January 2017. The woman will take home $14,000 after attorney fees, expenses and taxes.

I Don’t Know Much About The Law

Ask a lawyer anything outside their specialty and chances are they won’t know. Marie Karim, a teacher in New York City, developed an infection in 1999 during exploratory surgery. Karim, 27, retained Sheri Paige as Karim’s mom had once consulted the Norwalk, Connecticut attorney about collecting a debt. Over a year later Karim learned that Paige had no experience in dealing with healthcare and the statute of limitations had run out. Karim received nothing in her lawsuit but was awarded just over $300,000 from Paige’s insurance company.

I’ve Made Mistakes. Now, Good Luck Finding Them

The American Bar Association maintains a database of ethics violations and the information can be obtained by calling 312-988-5321. The challenge is the database relies on voluntary reports from state bar lawyers.  Many states will just say the attorney-in-question is in “good standing” even if the lawyer has had lots of complaints.

I Never Win

Any attorney can claim to have experience in their field. What many don’t tell you is if they are a winner or loser. Take the time, even in pressured situations, and conduct some due diligence to find out if your potential lawyer’s experience has been in the winning or losing column.

I Won’t Take Your Penny-Ante Case

Just because you have a strong case doesn’t mean you’ll find an attorney to accept it. If it’s bad for his bottom line, such as claims involving securities arbitration, you’ll have an orphan of a case on your hands. The number of this type case has risen over 55% since 1993 according to NASD Dispute Resolution.

I Charge As Much As You Let Me

Most attorneys charge a flat fee, an hourly rate or a percentage of the award. If your case is easy, a flat fee agreement is best. With a strong civil suit, an hourly rate to begin and switch to a percentage later may be the best.

You’re Better Off Without Me

Many of the activities a lawyer does can be done by yourself — if you have to time and motivation to learn. You can compose your own will for example. For other issues too complicated to be managed without legal assistance, try a paralegal. Depending on the state, paralegal’s can handle routine things like living trusts, house closings, and uncontested divorce for a few hundred dollars.

$417 Million Awarded in Lawsuit Against Johnson & Johnson

Johnson’s Baby Powder is a product that is found in almost every house. It’s a baby product, popular and has a lovely scent. What could possibly be the damage? You’ll be surprised.

In a recent lawsuit, Johnson & Johnson was ordered to pay $417 million in damages, to a woman who claimed she developed ovarian cancer after using the company’s well known Johnson’s Baby Powder on her abdomen for a prolonged period of time.

The plaintiff, Eva Echeverria, a 63-year-old medical receptionist and a resident of East LA is yet another person in the long list of people who have previously taken legal action against Johnson’s Baby Powder. This lawsuit and all similar ones are based on the studies that link talcum powder to ovarian and cervical tumors.

There have been other lawsuits against the company where the decision has also gone in the plaintiff’s favor. These include a $110 million verdict in favor of a woman from Virginia; a $55 million verdict for another plaintiff from Missouri and a $72 million verdict to a woman who unfortunately died before her case was closed.

Ms. Echeverria was too sick to testify in court so she had to send a videotape of her testimony which stated that she had been using the product since she was 11 and continued even after her diagnosis with ovarian cancer in 2007, unaware that it may actually be the cause of her cancer. The only reason she stopped using the product was when she heard another woman’s lawsuit against the company for the same reason. Ms. Echeverria claims she wanted to raise awareness for other women; she wasn’t doing it for herself but her goal was to ensure that other women did not suffer the same fate that she had.

Many women use the Johnson Talc powder to avoid chafing, after the shower or sprinkle it on their sanitary pads. In defense of the company, Carol Goodrich, a spokeswoman for the company, said the company is planning to appeal the verdict to continue defending the safety of their products. She also stated that while the company realizes that ovarian cancer is a devastating diagnosis, the company sticks by its claim that Johnson’s Baby Powder is a safe product which is backed by science. The evidence was not sufficient to support any association between perineal talc exposure and an increased risk of ovarian cancer.

Lawsuit Claims Landlord Increased Rent For Repairs Never Done

Rents have been consistently increasing in most parts of the country. In some cases, landlords increase the rent and tell their tenants that they are in the process of upgrading or renovating the place. However, in a large number of cases, landlords just keep the money and never upgrade the building.

This is exactly what has happened to Randy Garcia in Washington Heights, Manhattan. Randy was paying $1,800 rent, an exorbitant sum considering the fact that she has a low-paying job. After obtaining history of her rent increase, she quickly learnt that her landlord, Bronstein Properties, had doubled the rent in just four years. Under the law, to justify such an increase in rent, Bronstein would have had to perform more than $30,000 in renovations when the apartment was vacant. However, it was revealed that Bronstein had not filed a building permit for any type of renovation work.

Last week, more than 60 tenants, including Randy Garcia, filed a class action lawsuit against Bronstein Properties claiming that the corporation greatly inflated rents in regulated apartments by claiming that they had performed significant renovations. Bronstein Properties owns over ten dozen buildings with rent regulated apartments, mostly located in ungentrified neighborhoods.

In the state of New York, the rent for regulated apartments can only be increased by a certain amount every 12 months. This rule is in place to ensure that affordable housing is available for hundreds of thousands of New Yorkers. There are currently around 1 million unregulated apartments in New York City.

Landlords can only increase rents if they make renovations, like installing a new appliance or renovating the bathroom. They are not allowed to increase rent for mundane upkeep like painting an apartment. And if they do make a renovation, they are supposed to get a  permit first to make sure that the work is legitimate.

It is important for all tenants to know the rental history and determine why the rent is high; in general rental histories are not public record. However, the Division of Housing and Community Renewal which oversees rent regulated dwellings can provide this information if the tenant complaints of an unjustified rent increase.

It appears that for decades, Bronstein Properties has been taking advantage of its tenants, mainly  because of a lack of transparency as well as the fact that most tenants were unaware of their rights.

This lawsuit aims to change things and is being aided by the Housing Rights Initiative which aims to target all landlords who charge exorbitant rents. So far the Housing Rights Initiative has filed several class action lawsuits against many landlords.

New Patent Law Ruling Allows Refurbishing and Reselling

Last week, the US Supreme Court dealt a major blow to all corporations and manufacturers that frequently used the patent law as a weapon against individuals and other companies. The Supreme Court has ruled that companies and firms can only be sued for patent infringements in the geographic location where they actually do business. In other words, once a company has sold a product, it cannot prevent other firms from selling that service or product just because it has a patent for it.

The US Supreme Court has handed a major victory to all consumer groups who brought on the case after printer cartridges, specially toner cartridges sold by the firm, Impression, became the issue. However, this is a major ruling that will have repercussions way beyond printer cartridges.

The case started after Lexmark, the printer company, made it harder for people to get cheap used cartridges in the second-hand market. The company wanted everyone to buy their own expensive cartridges. While there is nothing wrong with this business model, what the company did was that it used the patent law to stop other companies like Impression from reselling its old cartridges.

What Impression was doing was simply buying old toner cartridges, refilling with more toner and selling them at a lower price. Lexmark argued that reselling and refurbishing its cartridges without permission was against the law. It claimed that Impression was violating the patent that Lexmark held on the cartridges. In other words, the company argued that that it had patent rights that extended beyond the initial sale of the cartridge to cover future sales. The US Supreme Court disagreed and ruled that once a product is sold, the company can no longer prevent others from reselling by using the patent law. So what does it all mean?

This ruling has enormous implications for the economy. This Supreme Court decision is not limited to cartridges only but almost every type of product manufactured in the US. For example, if you own a car, is that your car and can you do whatever you want with it? So far, according to the US Supreme court, that is your car and you can sell it as is or modify it that way you want and sell it.

Lawyers are now asking if this ruling applies to other products as well. There are 100s of software programs, computers, iphones, etc. that one can just buy, modify and sell at a lower price. And what about pharmaceutical medications? Can a company simply buy pills, modify them and resell them? The answer to these questions are not available but rest assured, big time corporations are not just going to let their innovations and hard work just be given away for free. It is expected that there will be more court battles related to this ruling in the near future.