Legal Stuff

AI Inventorship

18 November 2019

From The IP Kat:

The UKIPO (United Kingdom Intellectual Property Office) updated its Formalities Manual on the 28th of October 2019,adding under 3.05  a provision  that “An AI Inventor is not acceptable as this does not identify “a person” which is required by law. The consequence  for  failing to supply this information is that the application is taken to be withdrawn under s. 13(2)”.

Although one could question how important and breathtaking this amendment is,  still,  it signals the intention of the UKIPO and the way that it perceives AIat this point  of time. It is difficult to be sure  what has triggered this new provision,, but it could  be related to the patent applications submitted in the UKIPO, UPSTO and EPO, respectively,  concerning (i) a new form of beverage container based on fractal geometry and (ii) a device for attracting enhanced attention valuable for search and rescue operations. What these patent applications have in common is the inventor, an AI called Dabus.

Naturally, humans are involved in these patent applications, namely in the form of the  applicants, two professors from Surrey University. The question is, of course, why the applications name the AI program as the inventor,  if not to provoke a reaction from major patent offices.

. . . .

Professor Ryan Abott, also a professor at Surrey University, is the head of the application’s project. One of his statements available on the website of Surrey University states,

 “Powerful AI systems could hold the key to some of the mega challenges facing humanity – from the cure for cancer to workable solutions for reversing climate change. But if outdated IP laws around the world don’t respond quickly to the rise of the inventive machine, the lack of incentive for AI developers could stand in the way of a new era of spectacular human endeavor.”

In fact, the patent applications are part of a project, the Artificial Inventor project.

Link to the rest at The IP Kat

PG suggests the OP depicts intellectual publicity-seeking.

Employee’s unauthorized conduct was not a DMCA prohibited circumvention

12 November 2019

From Internet Cases:

Plaintiff sued its former employee and alleged, among other things, that defendant violated the anticircumvention provisions of the Digital Millennium Copyright Act  (17 USC 1201). While defendant was still an employee, she used her username and password to access and download copyrighted material stored on plaintiff’s server after she had already accepted an employment offer from a competitor.

. . . .

The court’s holding centered on what the DMCA means by “circumvent a technological measure”. The statute requires that for there to be circumvention, one must “descramble a scrambled work . . . decrypt an encrypted work, or otherwise . . . avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.”

. . . .

The court found that even if the use that defendant made of that access was not something that plaintiff would have authorized her to do, i.e. copy the materials at issue, defendant’s alleged abuse of her logon privileges did not rise to the level of descrambling, decrypting, or otherwise avoiding, bypassing, removing, deactivating, or impairing anything.

Link to the rest at Internet Cases

PG assures one and all that TPV is not going to become a legal blog.

However, the Digital Millennium Copyright Act, enacted in 1998, is an important protection for authors, especially where ebooks are involved.

As anyone paying attention knows, pirated intellectual property in digital form is a lovely thing for those who don’t want to pay creators, are cash-strapped college students, etc., etc. While making a copy of a physical book doesn’t require any particular skill, it does require time and labor. Making a copy of an ebook is much less difficult, even if it is protected by DRM (Digital Rights Management) software.

Here’s a link to one of many online descriptions of how to remove DRM protection. This particular link includes a step-by-step description of how to use Calibre plus a third-party DRM Removal Plugin to remove copy protection from every major ebook format. Under current law, doing this is illegal as is creating software to remove DRM protection, even for your own use.

The provisions of the DMCA that prohibit this are generically referred to as the anti-circumvention provision and are found in n 17 U.S.C. 1201(a), 1203, and 1204.

The core of the prohibition is included in 1201(a)(1)(A)

(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

1201(a)(3) provides a couple of relevant definitions:

(3) As used in this subsection—

(A) to “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and

(B) a technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.

The Electronic Frontier Foundation has filed suit to invalidate these anti-circumvention provisions or otherwise neuter them. Here’s a link to a recent status report on the litigation written by Cory Doctorow.

POM v. FTC: A dozen quotable quotes from the D.C. Circuit opinion

9 November 2019

From The Federal Trade Commission:

POM Wonderful’s advertising claims were false and deceptive. That’s the conclusion of the United States Court of Appeals in upholding the FTC’s ruling. We think it’s a momentous victory for our two clients: American consumers and the cause of truth in the marketplace. You’ll want to read the entire opinion, of course, but here are twelve quotes from the D.C. Circuit’s decision that businesses, attorneys, and law enforcers will be citing for years to come.

“The FTC Act proscribes – and the First Amendment does not protect – deceptive and misleading advertisements.”  Companies often cite the First Amendment as a defense in FTC cases. They forget the foundational principle that misleading ads get no constitutional protection.

“The Commission had no obligation to adhere to notice-and-comment rulemaking procedures before imposing liability in its adjudicatory proceeding.”  POM claimed that the FTC had to undertake a rulemaking – rather than bringing a lawsuit – because it was imposing a major change to its substantiation standard. Wrong on two counts, the Court concluded. First, the FTC is “not precluded from announcing new principles in an adjudicative proceeding.” But the bigger point is that the legal principles the FTC applied were well-settled “business as usual” standards. As the Court held, “With respect to POM’s establishment claims, the substantiation standard applied by the Commission is consistent with Commission precedent. When an advertiser represents that claims have been scientifically established, the FTC has long held the advertiser to the level of evidence required to convince the relevant scientific community of the claim’s truthfulness.”

“The Commission is often in a better position than are courts to determine when a practice is deceptive within the meaning of the FTC Act, and that admonition is especially true with respect to allegedly deceptive advertising since the finding of a § 5 violation in this field rests so heavily on inference and pragmatic judgment.”  Courts give administrative agencies a lot of deference when it comes to subject matters within their purview. For the FTC, that includes determinations of what an ad conveys and when it’s deceptive under Section 5. Why such a standard? Given its decades of collective institutional experience, that’s the FTC’s bread and butter.

“The Commission examines the overall net impression left by an ad and considers whether at least a significant minority of reasonable consumers would likely interpret the ad to assert the claim.”  Nothing new there, but the D.C. Circuit offers a succinct reminder of that touchstone. People can interpret ads more than one way and advertisers must substantiate all reasonable interpretations consumers take from their ads.

“In identifying the claims made by an ad, the Commission distinguishes between efficacy claims and establishment claims. An efficacy claim suggests that a product successfully performs the advertised function or yields the advertised benefit, but includes no suggestion of scientific proof of the product’s effectiveness. An establishment claim, by contrast, suggests that a product’s effectiveness or superiority has been scientifically established.”  This, too, should be old hat for advertisers. If an ad conveys an efficacy claim, the advertiser needs a reasonable basis to support it. The FTC analyzes that under the Pfizer factors the type of product, the type of claim, the benefit of a truthful claim, the ease of developing substantiation for the claim, the consequences of a false claim, and the amount of substantiation experts in the field would consider reasonable. But once advertisers claim to have a certain level of proof, they’ve upped the ante and “must possess the specific substantiation claimed.” What if an ad conveys a non-specific establishment claim – for example, by saying that a product has been “medically proven” to work or by using visuals that suggest it’s “based upon a foundation of scientific evidence”? In that case, the advertiser “must possess evidence sufficient to satisfy the relevant scientific community of the claim’s truth.”

. . . .

“The use of one or two adjectives does not alter the net impression, especially when the chosen adjectives (such as “promising”) provide a positive spin on the studies rather than a substantive disclaimer.”  That’s a quote from the FTC opinion cited favorably by the D.C. Circuit. POM tried to disavow its numerous establishment claims by arguing that it just said the scientific research was “promising,” “initial” or “preliminary.” As the FTC countered, “Those sorts of modifiers do not neutralize the claims made when the specific results are otherwise described in unequivocally positive terms.” The message to marketers: Don’t sprinkle a few adjectives here and there and expect them to undo the net impression conveyed to the buying public.

Link to the rest at The Federal Trade Commission

What does this all mean? In short, ప్రకటనదారు జాగ్రత్త వహించండి and Пусть рекламодатель остерегается, or for those without a legal background, let the advertiser beware.

Explaining the FTC’s New Social Media Influencer Sponsorship Disclosure Rules

9 November 2019

From Pirated Thoughts, the alternative legal blog:

The Federal Trade Commission has released its “Disclosures 101 for Social Media Influencers” and we break down how influencers should disclosure paid ads or sponsorships.

First things first, if you are getting paid to mention a product, place a product, or speak about a product on social media, the Federal Trade Commission requires that it be disclosed. Meaning you can’t get paid to promote a product without telling people you are getting paid. In the past, big companies have been fined over not having their influencers disclose such sponsored ads.

. . . .

Influencers must disclose when they have any financial, employment, personal, or family relationship with a brand.  If given free or discounted products, an Influencer is required to disclose this information even if they were not asked to mention that product.  The FTC reminds Influencers that even wearing tags or pins that show favorability towards a company can be considered endorsements of said company.  However, if you simply enjoy a product and want to talk about the product, you are not required to declare that you don’t have a relationship with that brand.  Lastly, even if these posts are made from abroad, U.S. law will still apply if it is reasonably foreseeable that the post will affect U.S. consumers.

. . . .

When disclosing a brand relationship, the disclosure should be placed within the endorsement itself.  However, this does not mean you can mix the disclosure in with a group of hashtags or links; it must stand out. For photos, the FTC requires Influencers superimpose the disclosure over the photo and, in the case of Snapchat, give their viewers enough time to read it.  For videos, the disclosure must be in both the video and the description.

. . . .

The FTC also stresses using simple and clear language.  Examples of this are thanking brands for free products, or using terms such as “ad.”  Terms such as “Partner” and “Ambassador” are also extremely useful for communicating a partnership.  Hashtags are fine, and encouraged, but not necessary.  Of course, the disclosure must be in the same language as the endorsement.

Link to the rest at Pirated Thoughts, the alternative legal blog

PG’s Simple and Clear Language: He doesn’t get paid for anything he posts on TPV other than the occasional link to a book for sale on Amazon that includes an affiliate link.

He appreciates it when visitors click on an Amazon affiliate link and thereafter buy something on Amazon, but Amazon’s affiliate fees are (fortunately) a very small part of the income that courses into Casa PG. If Amazon ended its affiliate program tomorrow, even a highly-observant individual would not be able to perceive any change in Casa PG or in the least-organized realms thereof where PG pursues the Dark Arts of law and blogging. Stacks of paper would continue to mysteriously materialize and procreate on PG’s desk without abatement.

And, lest anyone fail to understand, hashtags that should satisfy the idiocracy at the FTC:

#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad

#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad

#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad

#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad

  • #ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad
  1. #ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad#ad

#publicité#publicité#publicité#publicité#publicité#publicité#publicité#publicité

#Werbung#Werbung#Werbung#Werbung#Werbung#Werbung#Werbung#Werbung

#ការផ្សព្វផ្សាយ#ការផ្សព្វផ្សាយ#ការផ្សព្វផ្សាយ#ការផ្សព្វផ្សាយ#ការផ្សព្វផ្សាយ#ការផ្សព្វផ្សាយ

#жарнама#жарнама#жарнама#жарнама#жарнама#жарнама#жарнама#жарнама

#廣告#廣告#廣告#廣告#廣告#廣告#廣告#廣告#廣告#廣告#廣告#廣告#廣告#廣告

اشتہار#اشتہار#اشتہار#اشتہار#اشتہار#اشتہار#اشتہار#اشتہار#اشتہار#

#hysbyseb#hysbyseb#hysbyseb#hysbyseb#hysbyseb#hysbyseb#hysbyseb#hysbyseb

אַדווערטייזמאַנט#אַדווערטייזמאַנט#אַדווערטייזמאַנט#אַדווערטייזמאַנט#אַדווערטייזמאַנט#אַדווערטייזמאַנט#

#hoʻolaha#hoʻolaha#hoʻolaha#hoʻolaha#hoʻolaha#hoʻolaha#hoʻolaha#hoʻolaha

#Quảng cáo#Quảng cáo#Quảng cáo#Quảng cáo#Quảng cáo#Quảng cáo#Quảng cáo

#ప్రకటన#ప్రకటన#ప్రకటన#ప్రకటన#ప్రకటన#ప్రకటన#ప్రకటన#ప్రకటన#ప్రకటన

Justices pillage state arguments for sovereign immunity for copyright infringement

8 November 2019

From SCOTUSblog:

Blackbeard went unmentioned in Tuesday’s arguments in Allen v. Cooper. But the justices plundered North Carolina’s argument that it enjoyed sovereign immunity from suit for damages for copyright infringement.

Representing petitioner Frederick Allen, who sued North Carolina for infringing his copyrights in photographs and videos documenting the salvage of artifacts from Blackbeard’s sunken flagship, Derek Shaffer used his two-minute opening to argue that when “states infringe the exclusive rights that Congress is charged with securing, Congress can make states pay for doing so.” The intellectual property clause of Article I Section 8 of the Constitution provides an “express constitutional mandate for Congress to protect specified private property rights against any and all intrusion,” thus “securing” exclusive rights against “all comers, exclusive against the world, including the government and including states.” Congress can fulfill that mandate only by abrogating sovereign immunity by statute and subjecting states to suit for their infringing conduct.

. . . .

North Carolina Deputy Solicitor General Ryan Park argued on behalf of the state. Park maintained that the Constitution preserves state sovereignty unless there is “compelling evidence that the states surrendered it when they ratified a particular constitutional provision.” Allen failed to identify any historical evidence that anyone at the founding contemplated damages lawsuits against states for copyright infringement. According to Park, state sovereign immunity limits congressional authority to expose state treasuries both to expansive liability going far beyond the due process clause and to the Copyright Remedy Clarification Act’s “exorbitant” financial remedies of up to $150,000 per infringement.

Kavanaugh and Justice Stephen Breyer questioned Park about the possibility of multiple, rampant state uses of copyrights for which the authors receive nothing, which cannot be squared with a grant of exclusive rights. Park argued that the ordinary remedy for a state violation is an injunction, which Breyer said does nothing for an infringement that occurred yesterday. Park responded that a plaintiff can bring a direct constitutional claim for truly intentional or deliberate infringement for which no alternative remedy is available—because the copyright violation would constitute a due process violation, the statutory remedy would be congruent and proportional as applied to that case. Ginsburg suggested that this case “sounds pretty intentional to me”—North Carolina was alleged to have infringed, potential litigation was settled, then North Carolina resumed identical infringing conduct. Park argued that the case involves not infringement or a copyright violation, but a dispute over the scope of the license petitioners granted to the state in the settlement and a possible breach-of-contract lawsuit.

. . . .

Ginsburg suggested that there is “something unseemly” about a state’s being able to hold copyrights and sue for infringement of their copyrights but also to say, “we can infringe to our heart’s content and be immune from any compensatory damages.” She asked whether Congress could condition states’ copyright privileges on their agreeing to be subject to suit for infringement. Park said this would create an unconstitutional condition, although he agreed that Congress could remove the anomaly by denying states the right to hold copyrights.

Link to the rest at SCOTUSblog

The Reptile Strategy

24 October 2019

On rare occasions, PG provides a window into some lawyer stuff.

For a little background on this particular window, for decades, a group of lawyers often described as the plaintiffs tort bar – specializing in representing injured people in their claims against (usually) large and wealthy defendants or the large and wealthy liability insurance providers from whom the defendants have purchased liability insurance coverage of various types – have been developing and (sometimes) sharing strategies for increasing the size of jury awards for their clients.

Since big-time personal injury plaintiffs attorneys almost always represent an injured individual or group of injured individuals on a contingency-fee basis, increasing the size of jury awards is definitely viewed as a good thing in the plaintiffs tort bar.

A brief definition of contingency fees – In the US in most federal and state personal-injury litigation, in lieu of the injured person(s) paying a flat fee or hourly fee to an attorney who is seeking compensation for their injuries, the attorney will often undertake representation on a contingency fee basis.

The usual form of the contingency fee agreement between attorney and injured client is that the client is not required to pay the attorney (or law firm) anything to undertake representation of the client. The only way the attorney will be compensated is by receiving a percentage of the amount the client receives if the attorney succeeds in obtaining financial compensation for the client.

For example, if an attorney and client agree that the attorney will receive 33% of the amount the defendant (or the defendant’s insurance company) pays the client for his/her/their injuries, whether as a settlement or via a favorable verdict at trial, and, either under a settlement agreement or a verdict after a trial, the injured client obtains $100,000 in compensation, the attorney will receive $33,000 for his/her/their services and the client will receive the balance, $66,000.

If the attorney is unable to generate any money for the client, either through settlement negotiations or at trial, the attorney receives no fee.

Some jurisdictions inside and many jurisdictions outside the US do not permit a contingency fee agreement or regulate them in some manner, usually based upon the idea that the defendant’s attorney should not be financially motivated to generate a larger judgment against the defendant by financial benefits accruing to the attorney.

From the standpoint of an injured person without significant financial assets, without a contingency-fee arrangement, that person will be unable to afford to hire a competent attorney to assist her/him/them.

The key to the success of the contingency fee system is that many defendants purchase insurance to cover the types of claims which a policyholder will face if the policyholder injures someone. It is not unusual, for example, for a state to require that each driver must maintain insurance coverage in a specified amount to compensate someone injured in an auto accident in which the driver is at fault. (States with no-fault auto accident liability laws similarly require drivers and/or vehicles be insured.)

Such auto liability insurance policies are widely available. A bank or other financial institution financing the purchase of an automobile will usually require the owner of the car to purchase insurance coverage.

If claim is made that is covered by insurance, under most insurance policies, the insurance carrier will pay to defend the lawsuit. Usually, the insuror will select and pay defense counsel.

Generally speaking, only a relatively small group of attorneys is involved in very large litigation arising from the injury of one or more individuals (from the standpoint of the plaintiffs bar, the more the merrier). If a seriously-injured person goes to her/his/their family lawyer, that lawyer is likely to connect the client with an attorney who specializes in large personal injury matters, acting on behalf of injured people.

If an insurance carrier sees a major claim of any sort coming down the road, the company is likely to tap one of a relatively small number of well-established attorneys with a good track record of winning cases, either through a favorable verdict at trial or by minimizing the amount the insurance company is required to pay in damages.

The big-time plaintiffs attorneys and the big-time defense attorneys are in a perpetual running battle to come up with new strategies of persuasion to lead the members of a jury one way or another. Part of what you’ll see below is a peek into this trial strategy battle.

The Reptile Strategy was devised by David Ball, a trial consultant who “guides plaintiff’s civil cases and criminal defense cases across the country” and Don Keenan, an experienced personal injury attorney exclusively representing injured people.

From the website for Don Keenan’s law firm:

The Keenan Law Firm does not represent insurance companies, and each personal injury attorney in our firm is dedicated solely to the representation of the injured or deceased person.

The Keenan Law Firm has handled cases in over 47 states and 5 foreign countries. A significant amount of our cases come referred from lawyers all over the country. We gladly accept case referrals from other attorneys.

The Keenan Law Firm has received 378 verdicts and settlements over $1,000,000 including 14 over $10,000,000 and one over $100,000,000.

If you would like to purchase a copy of the Ball/Keenan title, Reptile: The 2009 Manual of the Plantiff’s Revolution by David Ball, Don Keenan, you can do so on Amazon for only $925.89 + $3.99 shipping + $67.13 estimated tax.

From Lexology:

The Reptile theory asserts that you can prevail at trial by speaking to, and scaring, the primitive part of jurors’ brains, the part of the brain they share with reptiles.  The Reptile strategy purports to provide a blueprint to succeeding at trial by applying advanced neuroscientific techniques to pretrial discovery and trial.

The fundamental concept is that the reptile brain is conditioned to favor safety and survival. Therefore, if plaintiff’s’ counsel can reach the reptilian portion of the jurors’ brains, they can influence their decisions; the jurors will instinctively choose to protect their families and community from danger through their verdict.  Thus,  the focus of the plaintiff’s case is on the conduct of the defendant, not the injuries of the plaintiff. The jurors are not interested in plaintiff’s injury, even when severe, according to the theory. Rather, the only truly effective  way to engage jurors is to demonstrate how the defendant’s conduct endangers the jurors and their families.

Link to the rest at Lexology

From Gallivan White Boyd, an insurance defense law firm:

In 2009, David Ball and Don Keenan published a book called REPTILE: The 2009 Manual of the Plaintiff’s Revolution (“REPTILE”). The $95 book is billed as a manual that teaches Plaintiff’s attorneys how to reduce tort reform’s impact on juries by using the jurors’ primitive safety and self-preservation instincts. For those who have not read the book, it begins with the premise that insurance companies, big business, et cetera, have convinced prospective jurors via tort reform propaganda campaigns that jury verdicts impact the economy in their community – that jurors walk into the courtroom with the understanding that jury verdicts threaten their basic survival. Keenan and Ball explain that jurors will disregard the facts and law to do whatever it takes to survive, and that tort reform has taken control of those survival-oriented decision making parts of the brain.

At first glance, it seems that the reptile strategy is a gimmick designed to bilk plaintiff’s attorneys out of $95; however, those who have faced the reptile strategy know that it can be dangerous. In fact, Keenan and Ball’s website boasts that the reptile strategy has been responsible for over $6 billion in verdicts and settlements. This article examines pertinent aspects of the reptile strategy and suggests two potential ways that civil defense lawyers can use reptile tactics to their advantage.

. . . .

In REPTILE, Keenan and Ball begin by providing the scientific background of the reptile strategy.  They explain that Yale Medical School and National Institute of Mental Health physician and neuroscientist Paul D. Maclean developed a theory that the human brain can be divided into a three-part “triune” brain.  See REPTILE at 13; see also Jay E. Gould, Triune Brain Concept . . . .   The theory suggests the first part of the human brain that developed was the “proto-reptilian brain.”  This part of the brain controls “feeding, fighting, and reproduction-the so-called Four F’s.”  The photo-reptilian brain, or “reptile brain” as it is called in REPTILE, is associated with survival instincts and protecting one’s genes.  In REPTILE, Keenan and Ball suggest that this part of the brain will override all other brain functions to ensure the survival of the genes.  The triune brain theory suggests that humans evolved to develop a second part of the brain, the paleo mammalian brain or limbic system, which is responsible for emotion, learning, memory, and various other increased levels of brain function.  The third step in the brain evolutionary process was the neomammalian brain or neocortex, which enhanced stimulus analysis, and added abilities such as language, planning, foresight, and hindsight.  The reptile theory suggests that the reptile brain remains in control of the other two parts of the brain, and that human beings will always do what it takes to promote safety and eliminate danger, above all else.  The reptile theory at its core suggests that if the jurors’ reptile brains can be controlled, so can the outcome of the trial.

Keenan and Ball believe that tort reform efforts during the 1990’s took control of the reptile brains of jury pools. Reason being, the stronger one believes his or her community to be, the safer he or she feels. Tort reform allegedly persuaded potential jurors that large civil lawsuit verdicts endangered the financial stability of the community, thus plaintiffs became a dangerous threat in the minds of potential jurors. Jurors now enter the courtroom with their reptile brains programmed to eliminate the danger to the community by returning a defense verdict (or a small verdict), regardless of the facts presented to them.

. . . .

One of the goals of the reptile strategy is to direct the jury’s focus to the total harm that could have happened, rather than the harm which actually happened. The strategy involves establishing “safety rules” that protect the public from harm and then showing that the defendant violated those rules. In order to make the jury care about the safety rule, the jury must be convinced that the rule protects the community, and by extension, the juror. A proper safety rule is broad and easy to understand. According to Keenan and Ball:

Some safety-rule violations are too specific to endanger the juror’s reptile. ‘A coal mining company is not allowed to turn the lights off while workers are in the mine’ applies only to the Reptiles of miners. But it becomes useful when positioned as a special case of a more general rule, such as, ‘A company must not needlessly endanger its employees’ or ‘A company is never allowed to remove a necessary safety measure.’ That connects it to everyone’s job.

A good reptile safety rule has six characteristics:

  1. it must prevent danger
  2. it must protect people in a wide variety of situations
  3. it must be clear and simple
  4. it must explicitly state what one must or must not do (e.g. drivers must travel at a safe speed)
  5. it must have been easy for the defendant to follow (e.g. it is easy for the defendant to follow the steps of differential diagnosis
  6. the rule must be one that the defendant has to agree with – or seem stupid, careless, or dishonest

The end goal is to show that the defendant chose not to follow a safety rule, and thereby endangered the community, and by extension, the juror (or someone the juror cares about). In theory, the juror’s reptile brain will then take over and will render a large verdict against the defendant to prevent the defendant from endangering the community in the future.

. . . .

The commentary suggests that witnesses should respond to broad questions regarding “needlessly endangering the public” by explaining that there are just too many undefined variables to answer such a general question definitively.

. . . .

As noted above, the reptile tactic involves establishing arbitrary safety rules which allegedly protect the public and then showing that the defendant broke those rules, thereby endangering the public. A defendant employing the reptile strategy on an affirmative defense will establish a simple safety rule that protects the public, and then show that the Plaintiff violated that safety rule, which endangered the public. Consider the following hypothetical:

John Doe is operating a piece of industrial equipment when it explodes, burning Doe severely, but no one else is injured. John Doe files suit, and Doe’s experts and the defendant’s expert agree that the explosion was caused by a loose fuel valve. It is undisputed that the loose fuel valve would have been discovered if Doe would have inspected it prior to the shift, and that tightening the fuel valve would have prevented the explosion. Doe’s employer told him he was responsible for performing a pre-shift inspection, but he was never instructed by his employer to specifically check to see if the valve was loose during the inspection. Doe’s employer did tell him that he needed to be familiar with the owner’s manual, and a label affixed to equipment directed him to the owner’s manual for instructions on how to inspect the machine. The Plaintiff claims that he did skim over the manual, but that he did not read the instruction regarding inspection of the valve at issue. The Plaintiff’s human factors expert says that the warning is buried in the manual, it is not color-coded correctly, etc. so the manual did not adequately instruct the Plaintiff regarding the inspection of the valve.

Obviously, in the hypothetical above, the defendant will want to show that adequate warnings were provided and that the Plaintiff’s failure to read the manual carefully is the true cause of the explosion. A reptile defense lawyer will engage the reptile brain of the jury by showing that the Plaintiff’s actions not only caused his injuries, but his actions also caused needless danger. Employing the reptile strategy, the defense may establish a safety rule and a violation of the safety rule as follows:

  • Mr. Doe, you would agree that it is never ok to needlessly endanger yourself or your co-workers?
  • And your employer gives you safety information which tells you how to avoid needless danger to yourself and your coworkers?
  • And the plant where you work has people from the community come in to look around every now and then – students, employees’ spouses, customers, etc.?
  • And you are never allowed to needlessly endanger visitors to the plant?
  • And the safety information your employer gives you is meant to protect visitors to the plant from danger as well, correct?
  • And you know that if you ignore safety information provided by your employer, you could endanger yourself and your coworkers, and any visitors?
  • So, you must not ignore that safety information?
  • And if that safety information is in writing when you get it, you should read it?
  • Part of the safety information that your company gives you when you are training tells you to inspect the equipment before your shift?
  • Because it is important to make sure the equipment is working properly before you operate it?
  • Because if the equipment is not working properly, you, your coworkers, or visitors could be endangered?
  • And there was a label on the equipment that said to read the entire operator’s manual, correct?
  • And the safety information your company gave you told you to read the entire operator’s manual for the equipment, correct?
  • And you admit that you did not read the section of the owner’s manual that told you to inspect the fuel valve?

Link to the rest at Gallivan White Boyd

PG couldn’t find an online version of Jay E. Gould, Triune Brain Concept, that wasn’t behind a paywall, but did find a paper on Google Scholar that includes the following quote in its introduction:

Look in the mirror, and don’t be tempted to equate transient domination with either intrinsic superiority or prospects for extended survival.

Stephen Jay Gould (2011)

I Will Not Tell You Where To Get Free Forms Online

23 October 2019

From The [Legal] Artist:

“Greg,” a prospective client might ask me, “Where can I find a free online form to create my contract/document/will?”

“I don’t recommend doing that,” I would likely respond.

“But isn’t the democratization of the law something to celebrate?” they might retort. “Why are you against progress?”

Just to be clear, I’m not against the public having access to affordable and useful legal information (what do you think this blog is, after all?) and I’m very much in favor of people with genuine financial limitations having SOMETHING rather than nothing. So in a pinch, if you can’t afford a lawyer, a template document can be a useful tool.

. . . .

1. You don’t know what’s in them. The legalese in these forms can be confusing and because of that, the form might contain language that isn’t applicable to your situation, or worse, is actively harmful to your interests. I’ve seen first hand how badly this can go… several years ago I had a client who used an online form to license his work to another party. But because he selected the wrong form, he accidentally ended up selling the rights to his work outright and wasn’t able to get them back. There’s a reason lawyers spend so much time and money on schooling and then years working for other attorneys… to build up the knowledge base and skills needed to understand how to read and write these documents.

. . . .

3. They can’t anticipate what you don’t know to look for. Let’s be honest. You don’t know what you don’t know. That’s why you hire a professional anytime something bad happens with your car, your house, your lower back, etc. Using a form that can’t anticipate your knowledge level means you could be leaving money on the table you didn’t know you had a right to; it could leave out important clauses that protect your interests and include clauses that harm you; it could result in ambiguous terms that neither party can understand; it could force you into arbitration when you’d rather use the court system. You may end up worse than you started because you didn’t know what to look for.

Link to the rest at The [Legal] Artist

PG will share a story from one of his past legal lives when he handled much different legal matters than he does now. He believes it illustrates an extreme case of what can happen when a well-meaning person creates a legal document he/she doesn’t fully understand.

A woman named Lodima Long had an attorney (not PG) prepare a will for her. Perhaps it was because she had worked hard all her life and/or had outlived three husbands, she had a lot more money and property than most of the other people in her family. Lodima was a widow with no surviving children. Her will allocated her money and property among a wide variety of different relatives.

Lodima signed the will and it was properly witnessed and notarized. Lodima left the attorney’s office with her valid will in her purse.

Several months thereafter, Lodima decided to take an extended trip to visit a large number of her relatives. She took her will with her.

Apparently, as she visited various of her relatives, she decided to make changes in how her estate was to be divided. Lodima started crossing out parts of her will and making changes to it. In pencil. The resulting document was full of deletions, additions, erasures, lines, arrows and tiny comments.

After a few months, Lodima returned home with her will. She then proceeded to die.

A couple of Lodima’s extended family members discovered the will among Lodima’s belongings after the funeral. They were named in the will. They read the will. A period of time passed. The family members brought the marked-up will to an attorney to start the probate process.

By the time PG was hired by a handful of Lodima’s heirs, her probate had been a contested proceeding for 13 years. About 15-20 attorneys were involved (the number had varied from time to time during the pendency of the probate because some heirs had died and left heirs of their own and a couple of the original attorneys plus the attorney who drafted the original will, had also died.).

PG managed to settle the matter by the simple method of asking that the judge set the case for trial. Since nobody (including the judge) was at all anxious to attempt to prepare for what was certain to be a long and messy trial with a lot of witnesses calling each other liars, the judge summoned the sheriff and several deputies to the courtroom. With muscle at hand, the judge threatened to sequester all the parties and their attorneys in the courthouse until a settlement was reached, no matter how long it took. The various and sundry parties then managed to agree on a settlement that parceled out Lodima’s estate to her various and sundry heirs in a manner that was definitely not consistent with Lodima’s intentions, whatever they might have been.

None of Your Damn Business

22 October 2019

From The Wall Street Journal:

The word “privacy” appears nowhere in our Constitution, but privacy lies at the root of our constitutional republic. At least that is how John Adams saw it on the day before America declared independence. Writing to his wife, Abigail, on July 3, 1776, Adams observed that the path to independence traced back to “the year 1761,” specifically to “the argument concerning writs of assistance.” Fifteen years before, Adams witnessed a trial in Boston challenging British searches and seizures licensed by broad “writs”—warrants—issued by the king. He even memorialized lawyer James Otis’s case against them: “One of the most essential branches of English liberty is the freedom of one’s house,” Adams summarized at the time. “A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle.”

The argument failed in court but prevailed three decades later in the U.S. Constitution—more specifically, in the Fourth Amendment, which protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Other amendments protected the right not to open one’s home for military troops and the right not to testify against oneself.

Nearly two centuries later, as University of Alabama history professor Lawrence Cappello relates in “None of Your Damn Business,” the Supreme Court concluded that these specific rights implied a much more general “right of privacy.” As the court explained in infamously foggy terms, “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” In the case that prompted these words, Griswold v. Connecticut (1965), a right of privacy guaranteed married couples’ access to contraceptives. A half-century of further emanations and penumbras followed: a right to abortion, a right to same-sex marriage.

. . . .

Mr. Cappello brings together several aspects of “privacy” in American life and law to show how changing technologies and cultural values shaped our expectations of privacy. He reminds us that privacy involves our relationships with corporations—and with one another—as well as our relationship with the government. These themes are exemplified by Louis Brandeis, who before joining the Supreme Court co-wrote “The Right to Privacy,” an article focused not on government surveillance but on the acts of “the too enterprising press, the photographer, or the possessor of any other modern device for recording or reproducing scenes or sounds.” Brandeis argued for a personal right of privacy against them, which came to be known as the right “to be let alone.”

. . . .

Mr. Cappello credits Brandeis with devising “an entirely new approach” by “shifting the emphasis from where an alleged wrong took place . . . to how it affected an individual.” Brandeis lost in Olmstead, but the Supreme Court did adopt a more Brandeisian approach in Katz v. U.S. (1967), overturning a handicapper’s conviction because the police did not obtain a warrant before tapping a phone booth; the Court reframed the issue in terms of what would come to be called “reasonable expectations of privacy.”

Link to the rest at The Wall Street Journal

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