Legal Stuff

Attorneys for Parneros, Barnes & Noble Meet in Court

14 November 2018

From Publishers Weekly:

At a 20-minute initial conference, lawyers for Demos Parneros portrayed the fired CEO as a respected executive who is now “unhirable” after being wrongly dismissed for alleged sexual harassment. Lawyers for Barnes & Noble said they have “a different view of the facts.”

. . . .

In the brief opening conference, [Judge] Koeltl asked attorneys for each side if they’d be willing to at least confer about a settlement with the help of a magistrate judge. And while neither side sounded optimistic about a deal (Parneros’ attorney Anne L. Clark told the court that settlement discussions had been broached at one point but “didn’t get far”) neither side offered “an unequivocal no,” Koeltl observed, prompting him to say he would refer the parties to U.S. Magistrate judge Gabriel Gorenstein for a settlement conference. The signed scheduling order gives the parties until December 3 to notify the court “if such a referral would be useful for purposes of a settlement.”

Koeltl also suggested the two sides consider waiving the jury waiver clause in Parneros’s employment contract, and proceed with a jury. The litigation is currently proceeding as a non-jury case.

. . . .

In today’s 20-minute hearing, Clark portrayed Parneros as a respected, once heavily recruited executive who is now “unhirable” after being wrongly dismissed for alleged sexual harassment. Clark reiterated Parneros’s claim that he did not sexually harass anyone, and said that an incident with an executive assistant cited as the basis for his firing had been “resolved” in-house prior to his dismissal. Parneros, Clark said, also denies being abusive toward other members of the Barnes & Noble’s executive team.

Link to the rest at Publishers Weekly

Social Media and E-Discovery

9 November 2018

For a little introduction, in US civil litigation, following the filing of a lawsuit, each of the parties will virtually always engage in discovery.

In this context, discovery means discovering what information the other side has that will support its case or provide a defense against your claims.

In much civil litagation, there are three classes of discovery:

  1. Document discovery – letters, notes taken during meetings, tape recordings, emails, contracts, promissory notes, etc., etc. that may be used as evidence at trial or lead to the discovery of evidence are produced for the other side to examine, usually in the form of copies. This type of discovery may also apply to things that may be placed into evidence – a defective device that caused harm to one of the parties, for example.
  2. Interrogatories – Written questions that one side serves on the other for which written answers will be provided, attested to be true under oath.
  3. Depositions – The parties (usually) and their lawyers (always) meet in somebody’s conference room Generally speaking, a court recorder or a technician who minds a digital will also be present to make a record of the deposition. The lawyer for one side asks quesitons which the opposing party or a fact witness who may be testifying for the opposing party or an expert (physician, engineer) who may be testifying on behalf of the other party. The witness is placed under oath and is required to answer truthfully to the best of her/his knowledge.

Once a legal fight begins or is imminent, all parties are supposed to take reasonable steps to preserve evidence or likely evidence that is likely to be needed at trial. If a party destroys evidence, the court may be able to treat such destruction as an indication that the evidence would be harmful to that party’s case, impose sanctions, etc.

The OP below talks about issues involved in gathering and preserving Electronically Stored Information (ESI) that is or may become evidence in litigation.

From Legaltech News:

Of the 7.5 billion people in the world, a staggering 3 billion are using social media. Suffice to say, this trendy method of communication stopped being a fad long ago, but the world of law is really just catching up. Woven into our global society, social media provides easy access to groups of like-minded people. These platforms give us the ability to share personal details with our extended circles and be informed in “real-time” of events traditionally reserved for the nightly news. From the lens of the law, the question then becomes, how does social media play a role in current and future litigation?

Based on our normal interaction with third-party platforms like Facebook, Instagram, Twitter and the like, most of us believe our online information to be private and secure. Right? Not really, not at all.

Third Party Doctrine

To be clear, the courts have stated that the Third Party Doctrine is dispositive. Meaning, once an individual provides a third party (like social media) with information, and voluntarily agrees to share that information with someone else (like the newsfeed or followers), that person loses any reasonable expectation of privacy.

Stated in the Yale Journal of Law and Technology, “…If the third-party doctrine governs social media behavior, then published content voluntarily shared among connections within a private social network loses all reasonable expectation of privacy, including any reasonable expectation that a user’s connections will not turn over their social data to investigative authorities.”

Now, how is this doctrine applied within the courtroom? The jury is out on that.

Court Opinions Vary

The court has been inconsistent in how to fall regarding social media discovery. The way the law was applied in these two contrasting cases best characterizes this discrepancy.

Romano vs. Steelcase Inc.

Backstory: Kathleen Romano fell at work. She claimed to be permanently injured due to the fall and brought a case again her employer, Steelcase.

The Role of Social Media: During the proceedings, Steelcase subpoenaed her Facebook and Myspace pages. The request wasn’t immediately granted. However, Steelcase pushed the envelope and moved to compel, stating that public information seen online indicated a lifestyle different than what the plaintiff was asserting in court (traveling, being very active, etc.). The court then decided that her social media presence “didn’t come with a reasonable expectation of privacy.” It granted the motion to compel and gave the defendant full access to the plaintiff’s current and historical Facebook and Myspace pages.

Tompkins v. Detroit Metropolitan

Backstory: Tompkins filed suit with Detroit Metro after slipping and falling at the airport. The plaintiff refused to voluntarily give the defendant unrestricted access to her Facebook information, including items that she has labeled as “private” or unavailable for public viewing.

The Role of Social Media: The defendant moved to compel (similarly to Steelcase) arguing that Tompkins’ publicly available photos of herself brought into question the severity of her injuries. The court made clear that social media was discoverable, even things that were designated as private, but that there were limits to that discoverability. They ruled that the defendant did not, “have a generalized right to rummage at will through information that plaintiff has limited from public view.”

The court ruled that the defendant must make a threshold showing that publicly available information on social networking sites undermines the plaintiff’s claims, and that searching through the entire account was considered overboard. As such, the defendant did not obtain the plaintiff’s private Facebook information.

Link to the rest at Legaltech News

At the end of this post is a link to a court order in a class action suit filed on behalf of a large number of cancer patients who claim they were harmed by taking an anti-cancer chemotherapy drug called Taxotere.

In this order, the trial court is laying out the kinds of electronic documents the plaintiff cancer patients must provide to the defendant drug company.

In this case, the obligation to produce such electronic documents includes the obligation for each plaintiff to diligently search of all the places that ESI may exist because emails, text messages, Facebook posts, blog posts, etc., etc., may contain information concerning the harm the plaintiffs are claiming they suffered during chemotherapy because of Taxotere.

If a chemotherapy patient was texting smiley faces to everyone during and after treatments, maybe he/she wasn’t really hurting all that much.

If PG were required to do the type of search into his electronic past as described in the court order, he would think about whether the court-mandated digging through the enormous mass of his digital detritus was worse than the cancer.

Here’s a link to the court order.


Medallion Press Files for Chapter 7 Bankruptcy

30 October 2018

From Publishers Weekly:

Medallion Press filed for Chapter 7 bankruptcy October 18, in the U.S. Bankruptcy Court of Northern District of Illinois. In its filing, the publisher listed assets of $100,001 to $500,000 and liabilities in the same range. It cited between 200 to 999 creditors.

Under a Chapter 7 filing, a trustee will liquidate a company’s assets in order to earn as much money as it can to pay creditors.

. . . .

Medallion was founded in 2003 by Helen Rosburg, a published romance author and great-granddaughter of Wrigley Co. founder William Wrigley. The house initially focused on publishing mass market paperbacks in the categories of general fiction, romance, fantasy, paranormal, science fiction, mystery and thrillers.

After growing steadily from its launch to 2010, Medallion formed with Medallion Media Group and put an eye towards entering the movie and music business.

. . . .

Since word of the bankruptcy started to spread, agents have been working to retrieve the publishing rights of their authors from the company.

Link to the rest at Publishers Weekly

Several lifetimes ago, as a volunteer lawyer working with Legal Aid (an organization that provides legal assistance to poor people in the US), PG filed a lot of Chapter 7 bankruptcy petitions. That said, he has not remained current on bankruptcy law and does not provide any legal advice for those involved in bankruptcy proceedings. He especially doesn’t provide legal advice via blog posts on TPV.

For business organizations, a typical bankruptcy will be filed under Chapter 7 (the business can’t pay its debts and its assets will be liquidated and the proceeds divided among its creditors) or Chapter 11 (if the bankruptcy court will hold the creditors at bay, the business can reorganize itself, stretch out some payments, get out of some contracts and once again become a viable business entity).

The OP says Medallion has filed for a Chapter 7 bankruptcy. If the legal process is carried through to conclusion, Medallion will cease to exist after a period of time during which its assets are sold and, under the supervision of a court-appointed bankruptcy trustee, the proceeds divided among its creditors according to priorities set in the bankruptcy laws. Any current or future lawsuits against the company get rolled into the bankruptcy process along with the claims of all creditors, including authors who haven’t been paid their royalties.

The OP says literary agents have been working to retrieve the publishing rights of their authors from Medallion. Unless the agents have retained competent bankruptcy counsel, that isn’t going to happen. Medallion no longer controls the publishing rights. Upon the filing of the Chapter 7 petition, which has already occurred, the bankruptcy court controls the publishing rights and all other assets owned by Medallion. Whoever may answer the phone at Medallion can’t do anything with publishing rights, regardless of how persuasive a literary agent may be.

PG is not aware of any special provisions of the bankruptcy laws that place authors in a privileged position in a Chapter 7 bankruptcy of a publisher (although he would be very happy to learn such provisions exist).

Absent such provisions, the publishing agreements between Medallion and its authors are assets that the bankruptcy trustee will try to sell for the best price possible to whoever will pay that price. Any claims for unpaid royalties owed to authors will likely be rolled into the pile of unpaid debts of Medallion and cash resulting from sales of assets will be divided among the printer, the utility companies, UPS, the bookstores that have returned Medallion books for a refund and not been paid, etc., etc., etc., and the authors.

Absent unusually valuable assets, PG suspects the authors will receive a small fraction of their unpaid royalties.

But what about the publishing rights the agents are apparently attempting to retrieve?

In a variety of different business contracts, somewhere back in the boilerplate provisions, there is a bankruptcy clause that is worded something like the following:

In the event that either Party files for protection under bankruptcy laws, makes an assignment for the benefit of creditors, appoints or suffers appointment of a receiver or trustee over its property, files a petition under any bankruptcy or insolvency act or has any such petition filed against it which is not discharged within sixty (60) days of the filing thereof, then the other Party may terminate this Agreement effective immediately upon written notice to such Party.

Unfortunately, upon the filing of a bankruptcy petition, this contract provision becomes unenforceable.

The bankruptcy court determines what happens under the contracts that are held by the individual or company filing for relief under US bankruptcy law. As stated above, generally speaking, under Chapter 7, the bankruptcy trustee tries to sell the assets owned by the person or company filing for bankruptcy relief to whoever offers to pay the highest price.

As an uninvolved observer (and not as an attorney), PG expects the publishing contracts between Medallion and its authors will be sold to an individual or company and (voilà!) – all the Medallion authors will have a new publisher!

The new publisher might be Random House or it might be Kevin the Krusher, New Jersey junkyard magnate, who buys the publishing contracts as a gift for his spoiled son, Digby, who has always wanted to be a member of the literary set.

If the Medallion publishing agreements include the most unfortunate, but quite common provision by which the author granted Medallion the right to publish his/her books for the full term of the copyright the author owns for the book (typically, the rest of the author’s life plus 70 years in the US), each of the Medallion authors can look forward to receiving royalty statements (or not) from Digby every once in awhile accompanied by royalty checks (or not).

After Digby retires, Digby, Jr., may become the publisher followed by Digby III (or not).

Or, if the circle of life applies to publishing contracts, perhaps Digby will burn through all his father’s money and file a petition for relief under Chapter 7 of the Bankruptcy Code.

EFF calls for reforms – – to the reforms!

25 October 2018

From The 1709 Blog:

As the CopyKat reported earlier this week, the technology sectors are continuing their assault on planned reforms to EU Copyright law, and now the Electronic Frontiers Foundation has joined the likes of Google, YouTube and Facebook in criticising the planned copyright law reforms. In a letter the EFF say has been sent to everyone involved in the upcoming “Trilogues”, the meetings held between representatives from European national governments, the European Commission, and the European Parliament, Cory Doctorow argues that the reforms contained in Articles 11 and 13 of the Copyright Directive are “ill considered and have no place in the Directive”, concluding that instead of effecting some “piecemeal fixes to the most glaring problems”, the Trilogue takes a simpler approach, and removes them from the Directive altogether.

Having previously opined that the vote in the European Parliament that passed the draft Directive “brought the EU much closer to a system of universal mass censorship and surveillance, in the name of defending copyright” and that Articles 13 and 11 would create “upload filters” and the “link tax”, the EFF’s views are perhaps unsurprising – you can make of the points raised as you will, as the letter is set out in full is below:

The Electronic Frontier Foundation is the leading nonprofit organization defending civil liberties in the digital world. 

. . . .

 We believe that Articles 11 and 13 are ill-considered and should not be EU law, but even stipulating that systems like the ones contemplated by Articles 11 and 13 are desirable, the proposed text of the articles in both the Parliament and Council texts contain significant deficiencies that will subvert their stated purpose while endangering the fundamental human rights of Europeans to free expression, due process, and privacy.

. . . .

 Article 13: False copyright claims proliferate in the absence of clear evidentiary standards or consequences for inaccurate claims.

Based on EFF’s decades-long experience with notice-and-takedown regimes in the United States, and private copyright filters such as YouTube’s ContentID, we know that the low evidentiary standards required for copyright complaints, coupled with the lack of consequences for false copyright claims, are a form of moral hazard that results in illegitimate acts of censorship from both knowing and inadvertent false copyright claims.

For example, rightsholders with access to YouTube’s ContentID system systematically overclaim copyrights that they do not own. For instance, the workflow of news broadcasters will often include the automatic upload of each night’s newscast to copyright filters without any human oversight, despite the fact that newscasts often include audiovisual materials whose copyrights do not belong to the broadcaster – public domain footage, material used under a limitation or exception to copyright, or material that is licensed from third parties. This carelessness has predictable consequences: others — including bona fide rightsholders — who are entitled to upload the materials claimed by the newscasters are blocked by YouTube and have a copyright strike recorded against them by the system, and can face removal of all of their materials. To pick one example, NASA’s own Mars lander footage was broadcast by newscasters who carelessly claimed copyright on the video by dint of having included NASA’s livestream in their newscasts which were then added to the ContentID database of copyrighted works. When NASA itself subsequently tried to upload its footage, YouTube blocked the upload and recorded a strike against NASA.

In other instances, rightsholders neglect the limitations and exceptions to copyright when seeking to remove content. For example, Universal Music Group insisted on removing a video uploaded by one of our clients, Stephanie Lenz, which featured incidental audio of a Prince song in the background. Even during the YouTube appeals process, UMG refused to acknowledge that Ms. Lenz’s incidental inclusion of the music was fair use – though this analysis was eventually confirmed by a US federal judge. Lenz’s case took more than ten years to adjudicate, largely due to Universal’s intransigence, and elements of the case still linger in the courts.

Finally, the low evidentiary standards for takedown and the lack of penalties for abuse have given rise to utterly predictable abuses. False copyright claims have been used to suppress whistleblower memos detailing flaws in election security, evidence of police brutality, and disputes over scientific publication.

Article 13 contemplates that platforms will create systems to allow for thousands of copyright claims at once, by all comers, without penalty for errors or false claims. This is a recipe for mischief and must be addressed.

Article 13 Recommendations

To limit abuse, Article 13 must, at a minimum, require strong proof of identity from those who seek to add works to an online service provider’s database of claimed copyrighted works and make ongoing access to Article 13’s liability regime contingent on maintaining a clean record regarding false copyright claims.

Rightsholders who wish to make copyright claims to online service providers should have to meet a high identification bar that establishes who they are and where they or their agent for service can be reached. This information should be available to people whose works are removed so that they can seek legal redress if they believe they have been wronged.

In the event that rightsholders repeatedly make false copyright claims, online service providers should be permitted to strike them off of their list of trusted claimants, such that these rightsholders must fall back to seeking court orders – with their higher evidentiary standard – to effect removal of materials.

This would require that online service providers be immunised from Article 13’s liability regime for claims from struck off claimants. A rightsholder who abuses the system should not expect to be able to invoke it later to have their rights policed. This striking-off should pierce the veil of third parties deputised to effect takedowns on behalf of rightsholders (“rights enforcement companies”), with both the third party and the rightsholder on whose behalf they act being excluded from Article 13’s privileges in the event that they are found to repeatedly abuse the system. Otherwise, bad actors (“copyright trolls”) could hop from one rights enforcement company to another, using them as shields for repeated acts of bad-faith censorship.

Online service providers should be able to pre-emptively strike off a rightsholder who has been found to be abusive of Article 13 by another provider.

Statistics about Article 13 takedowns should be a matter of public record: who claimed which copyrights, who was found to have falsely claimed copyright, and how many times each copyright claim was used to remove a work.

Article 11: Links are not defined with sufficient granularity, and should contain harmonised limitations and exceptions.

The existing Article 11 language does not define when quotation amounts to a use that must be licensed, though proponents have argued that quoting more than a single word requires a license.

The final text must resolve that ambiguity by carving out a clear safe-harbor for users, and ensure that there’s a consistent set of Europe-wide exceptions and limitations to news media’s new pseudo-copyright that ensure they don’t overreach with their power.

Additionally, the text should safeguard against dominant players (Google, Facebook, the news giants) creating licensing agreements that exclude everyone else.

News sites should be permitted to opt out of requiring a license for inbound links (so that other services could confidently link to them without fear of being sued), but these opt-outs must be all-or-nothing, applying to all services, so that the law doesn’t add to Google or Facebook’s market power by allowing them to negotiate an exclusive exemption from the link tax, while smaller competitors are saddled with license fees.

As part of the current negotiations, the text must be clarified to establish a clear definition of “noncommercial, personal linking,” clarifying whether making links in a personal capacity from a for-profit blogging or social media platform requires a license, and establishing that (for example) a personal blog with ads or affiliate links to recoup hosting costs is “noncommercial.”

Link to the rest at The 1709 Blog

Regarding Article 11, PG suggests that the overwhelming majority of websites currently published on the internet are anxious for others to link to them. Placing any legal or regulatory barriers, hurdles or speed bumps in the path of such longstanding linking practices is an attack on the very nature of the internet. Hypertext and hyperlinks are foundational to both the logical and technical bases of the internet.

A link tax is a regulatory structure that may benefit a minuscule number of online information providers, a drop in the vast ocean of internet sites and the information they offer, by creating a regulation that threatens the entire ecosystem of that ocean.

A far better approach would be to require those who desire to protect their online information from standard internet protections to establish their own shared protocols and technology that will clearly differentiate the online information for which they wish to charge license fees from the vastly larger and more varied open internet. Browsers and other internet access devices can be redesigned to reject connections to sites operating with such protocols, presumably enforcing a paywall or other limitation on use absent a token provided by such sites that permits the browser to accept connections to that site.

Putting the onus on the small group of profit-seeking information providers to develop a common standard that can be recognized by widely used browsers and other means of accessing online information places the costs of such a new system upon those who wish to use it and intend to profit by it in some respect or otherwise achieve a purpose which is served by isolating such information and services from universal online access.

If such a protocol is properly designed, the potential for innocent or unintended violation of the rights of owners of such protected information will be greatly reduced, if not eliminated. In addition to protecting the greater mass of less-sophisticated users from inadvertent violations of the property rights of those protected by this protocol, it will allow such owners and enforcement authorities to focus on the small group of individuals who wish to improperly steal such information or expose it to wider audiences of viewers who have not paid the required license fee.

Ten things you should know about Instagram’s terms of use

7 October 2018

From Inforrm’s Blog:

1. The terms are confusing

Users must agree to the terms of use before they can have an Instagram account. The minimum age to sign up is 13. But the reading age for the terms are closer to university level. They are written using complicated language. For example, the licence granted is described as “a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of”.

2. You own your own photos, right?

Instagram claims it does not take ownership of its users’ content. But the terms state that the user grants Instagram a “non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use their content”. What this means is that Instagram has all the rights of the original owner of the content – aside from the fact that it is not an exclusive licence. It is important that photographers are aware of this because if they sell an image under an exclusive licence, posting the image on their Instagram would breach that licence.

3. Instagram can give away or sell your content

Instagram can sub-licence your content. This means that it could licence a user’s photograph or video to any third party, for free, without seeking permission, giving any notice or offering any payment to the user. It could also take a user’s content and let another company use that photo in exchange for a fee – which Instagram keeps.

. . . .

7. It’s a one-way street

The terms state that the same rules do not apply to Instagram’s content, which they specify is protected by Intellectual Property and cannot be copied, modified, edited, published, used or licenced. This restrictive approach is particularly problematic for other app developers, such as those who create apps to work in conjunction with Instagram to perform additional functions, such as analysing followers, unfollowers and boosting likes.

. . . .

10. Instagram should do better

Instagram’s user agreement gives it unnecessarily broad rights over its users’ content. It encourages sharing – for the benefit of advertising revenues – but leave users vulnerable to copyright infringement claims.

In my own research I have argued that Instagram should introduce an improved copyright policy that includes:

  • amending its user agreement so that it is clearer and fairer towards users and does not leave them vulnerable to copyright claims, or licence breaches.
  • adopting a “Notice and Takedown procedure” so users can request that infringing copies of their work are taken down by Instagram – similar to when content is blocked for copyright reasons on YouTube to enable copyright holders to enforce their rights, rather than taking court action.
  • the company should introduce a copyright education tool to provide information and awareness about the law to its users and inform copyright holders when another user has screen-grabbed their image (while at the same issuing a copyright notice to the person who has taken the grab).

If Instagram does not take these steps, the company might find itself in a spot of trouble. Just this month, the Paris Court of First Instance found that Twitter’s Terms of Use (not dissimilar to Instagram’s) were void and unenforceable because they were “abusive” towards users. Twitter, which could face fines of up to €30,000, will now have to remove terms and replace them with ones which are compliant.

Link to the rest at Inforrm’s Blog

Comicsgate leader is suing a Marvel/DC writer for defamation

2 October 2018

From The Daily Dot:

Comicsgate figurehead Richard C. Meyer is taking DC/Marvel writer Mark Waid to court, suing him for “tortious interference with contract and defamation.” Meyer accuses Waid of ruining his career in comics; a bold move considering the reputation Meyer already created for himself.

Gaining notoriety as a conservative reactionary YouTuber, Meyer is best known for provoking harassment campaigns against women, people of color, and trans people in the comics industry. He’s the comics publishing equivalent of Milo Yiannopoulos, and his behavior is widely documented on social media and in mainstream outlets like the Guardian and Washington Post.

. . . .

The lawsuit relates to Jawbreakers, a comic written by Meyer and drawn by Jon Malin and Brett R. Smith. Jawbreakers is an action comic about a team of former superheroes, marketed as an “apolitical” response to a perceived progressive bias at Marvel and DC. It was initially meant to be published by Antarctic Press (a small indie publisher), but they dropped it following backlash from the comics community. Several retailers promised to boycott the comic if it came out, while prominent writers and artists criticized Antarctic Press for giving Comicsgate a platform.

. . . .

By this point, in May 2018, Meyer and Comicsgate were already infamous for stirring up trouble. Waid was one of the most high-profile people to speak out against Jawbreakers, posting on Facebook to say he’d personally informed Antarctic Press of Meyer’s behavior:

“I have a call in to Antarctic Press. Until I hear back, I’m (hesitantly) willing to give them the benefit of the doubt that they don’t really understand who or what they’re getting into business with, which – though it would seem a stretch – is a possibility. If I do hear back, I’ll report in. Curious as to how they feel about publishing creators whose marketing strategy is to allegedly (*koff*) encourage their fans to threaten the employees of stores, and/or harass and one-star-review-bob stores, that don’t order their product.”

Soon after, Antarctic dropped Jawbreakers. Meyer decided to self-publish on Indiegogo instead, successfully marketing the comic as a battlefield in the culture wars. Basically, he used this controversy to gin up further support—and characterize himself as an underdog rebel while Waid represented the comics establishment.

. . . .

Meyer’s lawsuit frames Waid as his nemesis, saying that he personally defamed Meyer’s character and irreperably damaged his career. It describes Antarctic Press as “frightened for its very survival by Waid’s threats,” with Waid as the sole reason Jawbreakers got cancelled – ignoring the widespread public outcry from numerous other creators and comic stores. Meyer also says that Waid falsely accused him of sharing a list of comic store owners (i.e. doxing them), and defamed Meyer by characterizing him as “racist, serial harasser of minorities, and as affiliated with white supremacists.” He demands a jury trial and $75,000 in damages.

Link to the rest at The Daily Dot

PG suspects he’s not alone in wondering why some people have the idea that litigation can effectively settle what amount to glorified cat fights.

He has no knowledge of the subject of this disagreement or the identity of the parties involved, but “mere insults, indignities, threats, annoyances, or petty oppressions” are not a basis for suing for emotional distress (Restatement (Second) of Torts § 46 cmt. d. (1965)), which is the gravamen of most of these types of disputes


The Inner Voice

19 September 2018

From Aeon:

‘I think, therefore I am,’ the 17th-century philosopher René Descartes proclaimed as a first truth. That truth was rediscovered in 1887 by Helen Keller, a deaf and blind girl, then seven years of age: ‘I did not know that I am. I lived in a world that was a no world … When I learned the meaning of “I” and “me” and found that I was something,’ she later explained, ‘I began to think. Then consciousness first existed for me.’ As both these pioneers knew, a fundamental part of conscious experience is ‘inner speech’ – the experience of verbal thought, expressed in one’s ‘inner voice’. Your inner voice is you.

That voice isn’t the sound of anything. It’s not even physical – we can’t observe it or measure it in any direct way. If it’s not physical, then we can arguably only attempt to study it by contemplation or introspection; students of the inner voice are ‘thinking about thinking’, an act that feels vague. William James, the 19th-century philosopher who is often touted as the originator of American psychology, compared the act to ‘trying to turn up the gas quickly enough to see how the darkness looks’.

Yet through new methods of experimentation in the last few decades, the nature of inner speech is finally being revealed. In one set of studies, scans are allowing researchers to study the brain regions linked with inner speech. In other studies, researchers are investigating links between internal and external speech – that which we say aloud.

. . . .

William James had a complete disdain for the study of inner speech, because, to him, it was a ghost: impossible to observe. The French developmental psychologist Jean Piaget insisted that private speech signified simple inability – it was the babble of a child without capacity for social communication with no relation to cognitive functioning at all. Through much of the 20th century, Piaget seized the reigns of child development, insisting that children had to reach a developmental stage before learning could occur. Which came first: the chicken or the egg? Vygotsky said that learning occurred, then the brain developed. Piaget said the brain developed, then learning occurred.

Over years of meticulous experiment behind the Iron Curtain, Vygotsky continued to make his case. One thing he did was study children in the zone of proximal development as they worked with adults to accomplish tasks. In the experiments, the child would be presented with a challenge and a tool for overcoming it. In the zone, Vygotsky observed what he called ‘private speech’ – self-talk that children between the ages of two and eight often engage in. This intermediate stage, he held, was connected on one end to a prior period when we had no thread of memory (and no inner voice) and on the other end to true inner speech so crucial to self-reflection, narrative memory, and development of cognitive skills.

. . . .

By 1970, the push to validate Vygotsky’s ideas had picked up steam. A leader of that era was the American psychologist Laura Berk, professor emeritus at Illinois State University, an expert on childhood play. Berk observed children engage in imaginative, ‘make-believe’ play, and demonstrated that the substitution of objects – say a cup for a hat – requires internal thought (and self-talk) rather than impulse. Her studies show that during imaginative play, children’s self-talk helps them guide their own thoughts and behaviour and exert true self-control. She and many other child psychologists demonstrated the importance of the inner voice, beyond a doubt, elevating Vygotsky and burying Piaget for good.

. . . .

Do people in adulthood experience inner speech in the same way as children – or even as each other? Do most of us even have an inner voice – an internal commentator narrating our lives and experiences from one moment to the next?

These were deeply controversial and introspective questions in the 1970s, and they captured the imagination of Russell Hurlburt, an aeronautical engineer-turned-clinical-psychology graduate student at the University of South Dakota. Hurlburt had envisioned a way to accurately sample others’ random inner experiences. Today a professor of psychology at the University of Nevada, Las Vegas, he’s been honing the technique ever since.

Hurlburt calls his methodology Descriptive Experience Sampling (DES), and it works by sampling the inner thoughts of a given interviewee during those moments when a beeper randomly goes off. After extracting the contents of inner experience from countless interviews, Hurlburt has defined an array of phenomena typically shared by humans – auditory and visual imagery, emotion, awareness of real stimuli and a category of thoughts that occur without words, images or symbols of any kind. The main contribution here, though, is actually DES itself. Before its inception, introspective methods had been shunned for decades, if not centuries, as being too highly influenced by bias to be taken seriously. Now, with DES, Hurlburt believes in the possibility of obtaining unbiased, accurate snapshots of inner experience that includes inner speech.

Freed from the mundane confines of a laboratory, the data come from ‘the wild’, as Hurlburt puts it. A participant wears the beeper, which can go off at any moment throughout the day. They go about their daily activities and are likely to forget its presence. When the beeper does go off, the participant makes a careful note of exactly what their inner experience was immediately beforehand. Subsequently, they are questioned by Hurlburt about that experience in a thorough but open-ended interview.

The interview process itself requires an exacting, friendly yet trial-like probe of what occurred. In one unedited transcript in Hurlburt’s book Exploring Inner Experience (2006), a participant named Sandy is quoted following a beep: ‘I was reading. I was starting with the word “life”… and I had an image in my head – it was a black and white image, by the way – of… OK, I was staring at the word “life” and I had said to myself “life” in my own tone of voice.’

Sandy was referring to inner speech using the word ‘life’. For the next six minutes Hurlburt probed her about this experience. His questions eventually helped Sandy divulge that as she was inwardly speaking the word ‘life’ she simultaneously ‘saw an image of that word in an old-courier like font – black on a white background’ and a moving image of ‘sand pouring’ from a hand of unknown agency below her face.

. . . .

‘There are a lot of people who believe that you talk to yourself allof the time, so that’s a form of external pressure to say you were inner speaking when maybe you weren’t,’ he notes. For example, noted consciousness researcher Bernard Baars has asserted that ‘overt speech takes up perhaps a tenth of the waking day; but inner speech goes on all the time’. Hurlburt’s research shows this isn’t true; he finds that inner speech consumes about 25 per cent of an average person’s day, and thus, he is careful to not communicate any assumption about what type of inner experience a DES interviewee may have had at the time of the beep.

Thanks to the accuracy of DES, Hurlburt has found thought patterns associated with various clinical populations, including those with schizophrenia, bulimia nervosa, and autism. In a sample of bulimic participants, for instance, he’s found the propensity for multiple inner voices experienced at the same time. Take ‘Jessica’, a patient watching television when the DES beep occurred. In the front of her head, Hurlburt explains, she was inwardly saying ‘blond’, ‘skinny’, ‘guys’, and ‘stare’ in what was her own, unspoken voice. At the same time, in the back part of her head, she was saying, in another, quieter inner voice, still her own: ‘Why is it that movies and TV shows always have ‘girls for’, ‘to’, and ‘at’? Importantly, such experiences are not often perceived by the experiencers themselves, let alone revealed to anyone else.

. . . .

Fernyhough calls the most familiar level of inner speech ‘expanded’ because it is basically the same as external speech – grammatical and fully formed, but not vocal. He believes this kind of inner speech is most likely engaged when we are under stress or cognitive pressure. Imagine, for example, while travelling, that you are making an important phone call regarding a lost passport. While on hold there’s a good chance that you’ll mentally rehearse exactly what you are about to say to the official on the other end – your story about how your passport went missing – in language that is full and complete.

. . . .

The second broad category of inner speech defined by Fernyhough is considerably more mysterious and enigmatic. He calls it ‘condensed’ inner speech, borne out of Vygotsky’s belief that as speech becomes internalised it can undergo profound transformations that set it distinctly apart from the expanded version. Condensed inner speech is defined as a highly abbreviated and ungrammatical version of regular speech. Although possibly linguistic – comprised of words – it is not intended to be communicated or even understood by others. For example, as a habit in the winter since my younger days, I often think to myself, ‘passlockmoney’ before heading out the door to go snowboarding. For you to understand what I mean, I’m required to expand this term: Remember your ticket or pass if it is still valid, your snowboard lock, and cash or credit card for getting lunch (and après beer).

Link to the rest at Aeon

While PG was reading the OP, he realized that one of the instances in which he is most aware of his inner speech is when he is composing a legal document, often a contract.

His objective during such exercises is to be extremely precise with the words he uses and their operations in sentences and paragraphs. He actively seeks for possible alternative meanings and changes what he has written to avoid such alternatives and to create an expression that can only be interpreted to mean a single thing.

To this end, PG (and other lawyers) will sometimes insert a sentence that begins with something like, “For the avoidance of doubt”. The purpose of such sentences is to rule out a possible misinterpretation of a prior contract provision.

A greatly simplified use of this technique might be, “Author grants Publisher the exclusive right to publish the Work in hardcopy and paperback form. For the avoidance of doubt, Author retains all rights to publish the Work or derivative versions of the Work in the form of one or more comic books or graphic novels.”

If a single “For the avoidance of doubt” sentence doesn’t do the trick, another sentence beginning with, “For the further avoidance of doubt” can be employed.

The technique is used to state as precisely as possible what rights each party owns or controls and help deal with potential edge cases by describing what each party does not own or control.

PG’s inner voice is, to the best of his knowledge, always hard at work on such occasions and he is actively seeking to discover any ways in which the contract language might be misinterpreted or used to support a double meaning.

Defamation lawsuit over alleged fake Western painting tossed

17 September 2018

From a 2017 story in The Santa Fe New Mexican:

With Western American art long dismissed as unworthy of the fine art world, few collectors would have even cared 25 years ago if an early 20th-century oil painting of cowboys or Indians on the frontier was authentic or not.

Now, the owner of galleries in New Mexico and New York City is suing one of the world’s largest Western American art auctions, a Nevada gallery and others for defamation, accusing them of falsely claiming a $1 million painting he sold is a fake.

Gerald Peters of Santa Fe seeks unspecified damages from Peter Stremmel Galleries of Reno, the Coeur D’Alene Art Auction of Nevada and auction partner Mark Overby of Hayden, Idaho. The defendants’ lawyers say the claims have no legal basis. They filed motions in federal court in Reno last week to dismiss the suit.

. . . .

“It wasn’t really until the late 1980s or mid- to early-1990s that a lot of art historians and museums began to start taking Western American art seriously,” said Amy Scott, chief curator of the Autry Museum of Western Art, founded in Los Angeles in 1988.

The lawsuit centers on The Rain and the Sun, which Peters says is the work of Iowa-born Frank Tenney Johnson (1874-1939), a onetime illustrator for Field and Stream magazine who became famous for his oil paintings of nighttime frontier scenes.

Peters sold it years ago for $750,000 as part of a trade with other artwork to R.D. Hubbard, a well-known Western art collector, business tycoon and horse-track owner.

Peters says he took back the painting from Hubbard last year after Stremmel, of Reno, repeatedly insisted it was a forgery.

In its current tainted state, the painting is worthless, his lawsuit says.

“Word travels quickly within this small community when a work of art is called a fake,” the suit says. “It is hard, if not impossible, to unring that bell.”

. . . .

In this case, he insists the work is that of Johnson, dubbed the “master of moonlight” for his nocturne paintings known for their remarkable depth and color.

. . . .

But Johnson almost exclusively painted scenes of cowboys, Native Americans and their horses. More than a dozen have sold at Nevada’s massive annual Coeur D’Alene Auction, most recently Cowboys Roping the Bear for $965,250 in 2012.

In 2008, when the auction sold a record $36.8 million worth of art, Johnson’s The Sheriff’s Posse went for nearly $1.1 million.

Less famous than Frederic Remington and Charles Russell, Johnson is of special interest because he worked with Hollywood studios to create backdrops after he moved to Los Angeles in the 1920s when the Western movie genre was being invented, said Scott, of the Autry Museum.

Link to the rest at The Santa Fe New Mexican

And the rest of the story from Business Insider:

A federal judge has thrown out a defamation suit a Western art collector filed against a prestigious auction house and the owner of a Reno gallery who claimed an early 20th century cowboy painting he sold for $750,000 was a fake.

The judge in Reno dismissed the lawsuit last week against Peter Stremmel Galleries and the Coeur d’Alene Art Auction of Nevada.

Gerald Peters, who owns galleries in New York City and Santa Fe, New Mexico, said in the lawsuit filed last year that the defendants told his longtime friend and business partner R.D. Hubbard a 1937 oil painting wasn’t an original work of Frank Tenney Johnson, who is well-known for his paintings of cowboys.

Defense lawyers argued Peters wasn’t maligned because the statements about the authenticity of “The Sun and the Rain” didn’t refer directly to Peters.

Link to the rest at Business Insider and thanks to The Art Law Blog for the tip.

Here is an illustration created by Johnson as the frontispiece of a book titled Riders of the Silences. A Google Images search for Frank Tenney Johnson will show many more.

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