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Senin, 18 Juli 2011

Legal Waivers Incomprehensible

You will be shocked to find that:

[C]onsent forms provided to volunteers for HIV/AIDS research in the United States and abroad about study procedures, risks and benefits has found that the forms were extremely long and used wording that may have been complex enough to hinder full understanding. . . . lead investigator, Nancy Kass, Sc.D., deputy director for public health at the Johns Hopkins Berman Institute of Bioethics [said], "While we were familiar with many fairly long consent forms for several different types of studies. . . we were honestly surprised to see that the median length was 22 pages, and the median length for adult forms was a full 27 pages. . . . commonly misunderstood research concepts -- namely, randomization and placebos -- seemed to be explained with far less attention. For instance, whereas confidentiality sections had a median length of about two pages, randomization was treated to just 53 words. . . . institutional review boards recommend that consent documents be written at or below the eighth-grade level. But the majority of the forms that Kass reviewed required readers with at least a ninth-grader's comprehension. . . . Almost half of Americans read at or below the eighth-grade level[.]

Yet, John Hopkins scientists say this is true (underlying source: Nancy E. Kass, Lelia Chaisson, Holly A. Taylor, Jennifer Lohse. Length and Complexity of US and International HIV Consent Forms from Federal HIV Network Trials. Journal of General Internal Medicine, 2011; DOI: 10.1007/s11606-011-1778-6).

We wait with baited breath for the stunning revelation that legal documents other than informed consent forms which ordinary people are expected to sign have been "extremely long and used wording that may have been complex enough to hinder full understanding."
READ MORE - Legal Waivers Incomprehensible

Rabu, 29 Juni 2011

Righthaven Update: Still Crashing and Burning

Eric Goldman has an update on the Righthaven litigation in the last two weeks.

Judge Pro, another U.S. District Court Judge in Nevada has entered another ruling finding that Righthaven lacks standing and that the allegedly infinged work is protected by the fair use doctrine despite the fact that the entire newspaper article was reproduced. A lack of market impact was central to the ruling as was the context of the post in a political discussion and the mostly factual nature of the article reproduced. Collectively, the multiple rulings in the Righthaven fair use cases have greatly expanded the pro-blogger interpretations of the doctrine in cases involving newspaper articles. One pundit, at least, however, thinks that the cases are particular to the situation when the alleged copyright owner is suing over infringements that took place before it owned the copyright and involve an owner who isn't in the business of publishing and hence has no marketplace injury from infringement of its copyrights. A real newspaper that owned the copyrights in question at the time that there was an infringement might obtain different fair use rulings.

Fellow Judge Navarro in the same district, allows Righthaven to survive a Rule 12 motion mostly because there has been insufficient discovery in that case regarding discovery at the pleadings stage.

Righthaven faces a counterclaim for racketeering in one of its cases.

Las Vegas Review-Journal columnist and former Publisher Sherman Frederick who has crassly described Righthaven in a way that implies it is a mafia enforcer is being sued personally in a South Carolina state court suit, that also has named the Denver Post in claims including one related to code inserted when one copies text from its site, and has requested a pre-judgment writ of attachment to freeze Righthaven's assets.

Righthaven's attorney fee requests have also been treated skeptically.

A pro se party who have settled has asked a judge to set aside the settlement and make an award against Righthaven.

In sum, according to Goldman, "Righthaven's business is in tatters.", monetary sanctions are imminent, professional conduct investigations are ongoing, they are experiencing staff turnover, they have alienated a lot of judges, and they have made their business unattractive to future and renewing clients. Goldman characterizes efforts to overturn these rulings in the 9th Circuit Court of Appeals as a "hail mary" attempt.
READ MORE - Righthaven Update: Still Crashing and Burning

Jumat, 17 Juni 2011

Righthaven Suffers Potential Death Blow To Business Model

In a post yesterday, Technology and Marketing Law professor Eric Goldman summarizes a judge's June 14, 2011 order dealing a major defeat to Righthaven, a Internet copyright violation litigation company with the parent companies of the Denver Post and Las Vegas Review-Journal as major clients that has employed a very aggressive litigation strategy against bloggers who quote newspaper reports in their posts. 

An ongoing dispute over a cease and desist letter sent by Righthaven on behalf of the owner of the Denver Post to Colorado Pols, asserting rights in excess of those legally available to the newspapers under copyright law and largely complied with by the Colorado Pols blog to the detriment of the newspapers has earned Righthaven infamy in Colorado's political blogosphere.

The judge found that Righthaven didn't own the copyrights it claimed to be suing under its contract with the media company, and according to Goldman that judge ruled "that Righthaven can't fix the existing contract defect for the existing litigation because standing is measured when the complaint is filed. This could lead to dismissal of all pending Review-Journal litigation and, depending on the exact wording of the MediaNews contract, possibly the Denver Post litigation as well."

The ruling is a blow to Righthaven's entire business model:

"If Righthaven can't get this opinion reversed on appeal and other judges defer to this opinion on the standing question (which I think it likely), Righthaven may be back at square one with its entire business. Thus, I assume Righthaven will appeal this decision. However, this is a pretty well-constructed opinion, so Righthaven will have an uphill battle overturning it on appeal."

The judge also severely criticized Righthaven's litigation conduct and is likely to impose sanctions:


* the judge rejects Righthaven's basic substantive argument as "flagrantly false—to the point that the claim is disingenuous, if not outright deceitful."
* . . . "the Court believes that Righthaven has made multiple inaccurate and likely dishonest statements to the Court."
* the judge then goes on to lambaste Righthaven for not identifying [Las Vegas Review-Journal Owner] Stephens Media as an interested party in the lawsuit, calling that omission "brazen" and "egregious."

[As the order explains: "not only did Righthaven fail to identify Stephens Media as an interested party in this suit, the Court believes that Righthaven failed to disclose Stephens Media as an interested party in any of its approximately 200 cases filed in this District. Accordingly, the Court orders Righthaven to show cause, in writing, no later than two (2) weeks from the date of this order, why it should not be sanctioned for this flagrant misrepresentation to the Court."]

The judge requires Righthaven to explain why the judge should not order sanctions. Given the tenor of this opinion, it seems like a sanctions order is inevitable. The opinion also hints that Democratic Underground may get its attorneys' fees. All told, this case is probably going to cost Righthaven dearly. And after a ruling like this, Righthaven's entire enterprise is on the ropes.


Since standing goes to the subject-matter jurisdiction of the federal courts in which Righthaven has already obtained judgments and settlements resulting from federal court litigation, it is not impossible that litigation to set aside those ruling and even to obtain restitution of the settlements paid based on litigation premised on misrepresentations to the Courts by Righthaven could be brought successfully if this judge's order survives attempts to set it aside on appeal.

The Electronic Frontier Foundation, which provided a legal defense to the Democratic Underground also noted that:

"The Court permitted Democratic Underground's counterclaim to continue against Stephens Media -- the publisher of the Review Journal -- allowing Democratic Underground to show that it did nothing wrong in allowing a user to post a five-sentence excerpt of a 50-sentence article."

More details are found in my diary at Colorado Pols on the subject and the comments therein.
READ MORE - Righthaven Suffers Potential Death Blow To Business Model

Rabu, 08 Juni 2011

Bank of America Still Stupid

It takes a really poorly run bank to first foreclose on a property that has on that has no mortgage, and then to ignore a judgment entered against it from the same lawsuit until the sheriff's deputies are on its door. Alas, this is one of the half dozen largest banks in the United States, and probably the world.

Bank of America mistakenly filed a foreclosure claim against [Warren and Maureen Nyerges] even though they had no mortgage at all. The couple fought the case in court and won, but then asked Bank of America to pay for $2,534 in attorney fees. A Collier County judge ruled the bank should pay, but the bank never did.

On Friday, the couple's lawyer went to a Bank of America branch with two sheriff's deputies. He was prepared to take possession of furniture inside the bank to pay the debt.

One hour later, the bank wrote a check for $5,772.88 to satisfy the original debt plus other fees.

From here.

In truth, the consequences for the Bank of America in this Florida case were probably entirely too lenient.
READ MORE - Bank of America Still Stupid

Kamis, 12 Mei 2011

Righthaven Appears To Have Lied About Standing In Copyright Suits

Righthaven, [is] a new . . . venture that says it acquires copyrights from Stephens Media and sues bloggers for unauthorized display of those stories — about 200 cases in all since Righthaven was founded last year. . . . U.S. District Judge Judge Roger Hunt . . . ordered Stephens Media and Righthaven last month to respond to internal documents revealed in a case before his court. The documents seemingly showed that Stephens did not actually convey the copyrights to Righthaven, although Righthaven claims in court documents that it is the copyright owner. The Electronic Frontier Foundation told the judge that the arrangement was a “sham” and that Righthaven has no legal standing to sue.

From here.

While the contract between Stephens Media and Righthaven was and is easily amended to cure the problem (apparently granting Righthaven what amounts to a 50% contingent fee), the disclosure appears to betray a serious pattern of litigation misconduct by Righthaven's attorneys and to cast doubt on judgments and settlements that it has obtained from its litigation strategy to date in its campaign of copyright enforcement.

The publisher of the Denver Post has a similar arrangement with Righthaven.
READ MORE - Righthaven Appears To Have Lied About Standing In Copyright Suits

Senin, 14 Februari 2011

Monday Miscellany

* Last week, Glendale's animal rights terrorist, thirty-four year old Walter Edmund Bond, got five years in prison for burning down the sheepskin factory (and a $1.2 million restitution judgment together with three years of supervised release) following a guilty plea, despite the fact that he was utterly unapologetic and taunted the victims as he spoke prior to receiving his sentence. No physical injuries to people were caused by this or her other fires, but the business, which was not insured, was destroyed.

"In a society that honors money over life, I am honored to be a prisoner of war," Bond said. As Bond raged in the heavily guarded courtroom — at one point saying he wanted Livaditis to "choke on everything you earned" — a member of Livaditis' family cried in the audience. . . . [He] told Judge Christine Arguello that he has no remorse for the fire, which he has said he lit under the banner of the radical Animal Liberation Front, or ALF. . . . [The judge said] he would face additional prison time if he didn't keep up with restitution payments. Bond told Arguello he would not willingly make the payments. . . . Bond also has prior arson convictions that had nothing to do with animal-rights issues. Holloway said Bond was convicted in Iowa in 1996 for lighting a pentagram on fire inside a church convicted again in 1997 in Iowa for setting fire to a building, an incident that killed a family's pet. . . .

Bond's speech today stood in contrast to statements his lawyer made on his behalf last month in a court filing seeking to get Bond a reduced sentence of less than four years. In that filing, attorney Edward Harris wrote that Bond had renounced "burning the businesses of those who offend his principles. . . . Mr. Bond ... now believes that the better course of action is to limit his advocacy to speech and writing," Harris wrote.

That sentiment was not evident during Bond's speech, as he called affiliating with the ALF, "the proudest and most powerful thing I have ever done." Bond, who has identified himself at times in online writings as "ALF Lone Wolf," addressed part of his speech to "my vegan sisters and brothers" and encouraged them to keep up their campaign.

About a dozen of Bond's supporters sat in the courtroom for the sentencing hearing. . . After the hearing, many of the activists, some of whom traveled from across the country to attend, said they supported Bond's statement.


The willingness of federal prosecutors to accept such a lenient plea bargain may have something to do with the fact that he faces two more counts in Utah that will add to the total time served before his release. This conviction will impact his criminal history for the next convictions under the U.S. Sentencing Guidelines. U.S. Attorneys in Utah will also, no doubt, consider his statements at this sentencing in considering what plea agreements they are willing to reach with him.

Still, it is hard to imagine someone who claimed that he did this in the name of Islam, instead of animal rights, receiving a similarly light sentence. When someone who is deeply repentant can be sentenced to 30 years in prison for sending $3,500 to an Islamic organization that engaged in both terrorist and non-terrorist activities funded by petty fraud under a law that had never before been enforced, it is hard to see why someone with a prior criminal arson record he burns down a shop and has no remorse for the act should receive a lighter sentence.

* There seems to be some evidence that fructose (one type of dietary sugar) encourages obesity more the glucose (another type of dietary sugar).

* Genetic evidence has led biologists to reclassify a few species of worms called Acoels and Xenoturbella, that had previously been seen as a missing link between invertebrates with radial symmetry (anemones, jellyfish and sponges, for example) that use the same body opening to ingest food and excrete waste, and animals with bilateral symmetry that have a separate mouth and anus (earthworms, snails, insects, sea urchins and vertebrates, for example), since these worms have bilateral symmetry but a single body opening to ingest food and excrete waste. The genetic evidence suggests that rather than being a missing link, the Acoels had an ancestor that has bilateral symmetry and both a mouth and anus, but lost the anus in later convergent evolution. They turn out to be more closely related to the vertebrates and sea urchins than to other bilateral animals by several different genetic measures.

* Old teeth found at an archeological site in Israel suggest that there may have been modern humans in the Levant much earlier than prior finds have indicated, perhaps even shortly after the evolution of modern humans in Africa:

Excavated at Qesem cave, a pre-historic site that was uncovered in 2000, the size and shape of the teeth are very similar to those of modern humans, Homo sapiens, which have been found at other sites is Israel, such as Oafzeh and Skhul -- but they're a lot older than any previously discovered remains.

"The Qesem teeth come from a time period between 200,000 -- 400,000 years ago when human remains from the Middle East are very scarce," Quam said. "We have numerous remains of Neandertals and Homo sapiens from more recent times, that is around 60,00 -- 150,000 years ago, but fossils from earlier time periods are rare. So these teeth are providing us with some new information about who the earlier occupants of this region were as well as their potential evolutionary relationships with the later fossils from this same region."


Teeth are the prime sources for ancient DNA because the enamel shields them from outside conditions, leaving open the possibility that it might be possible to analyze the DNA of hominins much older than any other ancient DNA ever recovered. Even results limited to mtDNA could shed light on whether the modern humans finds in the Levant are ancestral to modern Eurasian, or a "dead end" as their apparent absence from the Levant for tens of thousands of year suggests might be the case. But, the rare teeth have value whole, and the ancient DNA inside could easy be degraded and provide no useful information, so the decision on whether scientists should try to analyze them in destructive testing for ancient DNA is a difficult one.

* One feature that is surprising absent from library cataloging software (at least in Denver) and online book purchasing sites (like Amazon) is an easy way to bring up all of the books and other media that are part of the same series and arrange them in order. This is particularly annoying when several volumns of a series are written by different authors (common in non-fiction and sometimes seen in tribute works to deceased authors). Even more annoying, however, is the effort of publishers like Little, Brown and Company's paperback offerings, where I have seen it done, to deliberately obscure the fact that a book which is one of the middle books of a series has books that come before it in the series on the book cover. I understand the desire to sell more books, but in general have a low opinion of marketing approaches that seek to capitalize on consumer ignorance rather than by letting them know more about the product.

* Marginal Revolution is a blog that is increasingly attracting my attention as a source of interesting and timely tidbits. So is Truth on the Market (which is more academic).

* Most recently, the latter blog brings the sad news that Borders, I book store that I saw rise from its humble beginnings as a wonderful independent bookstore in Ann Arbor, Michigan while I was in law school, is going bankrupt. Borders was acquired by Detroit area based Kmart to revive its Walden Books chain, one that I liked to describe as a book store for people who don't really like books that based on shopping malls. The book stores were spun off from Kmart, which went bankrupt and was merged in the same group with Sears, another retail chain that had jumped the shark but had valuable real estate holdings. Borders was a delightful book store, but expanded too fast with non-bookstore exeecutives, failed to gain a strong foothold into the online world, and tried to hard to meld a chain oriented towards intellectuals and one oriented towards non-intellectuals that was ill fated. I personally think that the role of a lack of online initiatives at Borders which has been played as a "death of books" scenario distorts what really went wrong with Borders, which can just as easily be understood as a lesson in the limits of the economies of scale.

* The Democratic Leadership Council (and its deceptively named think tank, the Progressive Policy Institute), a conservative leaning organization within the Democratic Party, is dead. It has run out of money and is suspending its operations. While the DLC has been more Clintonian than outright Blue Dog conservative, it has earned a great deal of ire from the progressive elements in the Democratic party anyway. The 2012 election was a blow to its core constitutency, as right leaning Democrats favored Republicans over Democrats, although the Democratic party still has a much bigger tend than the Republicans politically at the moment. Also, the DLC has simply lacked much of a coherent vision.

* Arizona is talking about bringing counterclaims in the federal suit to invalidate its anti-immigration law on pre-emption grounds alleging that Arizona has incurred fiscal harms as a result of non-enforcement of federal law by federal officials. The claim is frivilous as a matter of law and a nearly identical suit was promptly defeated in the courts in Colorado when Attorney General Suthers was directed by the legislature in a special session to bring such a suit. But, the political grandstanding continues to outweigh the legal good judgment of the officials making the legal move.
READ MORE - Monday Miscellany