Copyfraud and Beachfraud

An interesting intro to a new book, Copyfraud and Other Abuses of Intellectual Property Law, illustrates the author's thesis by way of an analogy to beachfront property owners claiming more than they lawfully possess -

California has 3,427 miles of shoreline. Under the state's constitution, the shoreline is available, up to the mean high-tide line, for the public to use. Owners of beach-front homes, however, would prefer to keep the whole beach abutting their properties to themselves. In Malibu, homeowners place phony "No Trespassing" signs on the public beach, and they deploy security guards on all-terrain vehicles to chase away beachgoers. In Malibu's Broad Beach neighborhood, residents have bulldozed wet sand from the shoreline up to the high-tide mark to create a giant access barrier. At Carbon Beach, gated homes spanning multiple lots from a wall that blocks access to the shoreline from the Pacific Coast Highway. Whenever public interest groups have sought to open up pathways to the beach so that the state's constitution may be honored, homeowners have vigorously fought back. In 2005, DreamWorks co-founder David Geffen's decision to give up the keys to locked wooden gates next to his Malibu home, allowing the public to enter a stretch of beach, was headline news because it followed years of litigation and daily fines imposed upon Geffen for unlawfully blocking beach access. Battles over beaches occur in other states as well. In most states, the wet sand area of a beach is held by law in public trust, meaning it exists for the use and benefit of the population as a whole, even when the adjacent property is privately owned. Yet property owners routinely attempt to make their rights go farther than they actually do by interfering with people's ability to access beaches. On the New Jersey shore, homeowners have obstructed public entry points near their properties by erecting fences, and private beach clubs have set up entrance gates that admit only paying members onto public lands. On the island of Oahu, in Hawaii, gated subdivisions have turned public beaches into private sands. And in certain New York municipalities, local voters have passed ordinances limiting the use of the beach to town residents, notwithstanding the fact that they have no legal right to do so. Increasingly, the beach - the public's playground - is subject to private claims.

Like the owners of beachfront property, owners of intellectual property regularly claim more than the law gives them.

Fed Dist Court judge allows live-blogging from trial

Malia Zimmerman in Hawaii Reporter -

U.S. District Judge Susan Oki Mollway has authorized Hawaii Reporter, the Star-Advertiser and Honolulu Civil Beat to cover the trial involving human trafficking allegations against Global Horizons via live blogging this February.

Personally, I think its odd that anyone would not be allowed to blog a public proceeding from the courtroom - or that anyone should have to ask.

MarketWatch video report on Kukui'ula

"Hawaiian Paradise Becomes a Ghost Town"

I like it when the reporter pronounces it "Kukuilua"

iPad apps for lawyers

Here.

FERC declines to issue preliminary hydropower permits for Kekaha Ditch Irrigation System

...or any other "permissive" - as opposed to "mandatory" - permits in Hawaii.

Brad Parsons was kind enough to forward me a copy of this, which I was then able to locate on the FERC website. It's the Order dismissing preliminary permit applications re Kahawai Power 4, LLC and Kekaha Ditch Hydro, LLC under P-14105 et al., filed today.

This order dismisses applications by Kahawai Power 4, LLC (Kahawai Power) and Kekaha Ditch Hydro, LLC (Kekaha Ditch Hydro) for preliminary permits to study the feasibility of a hydropower project on the Kekaha Ditch Irrigation System near the town of Waimea, Kauai County, Hawaii.

...

Kahawai Power filed the Kekaha Project 1 preliminary permit application for a site that another developer, Kekaha Ditch Hydro, was already pursuing through Hawaii’s state hydropower authorization process. Were we to issue a preliminary permit to Kahawai Power, the company would then have first-to-file priority over Kekaha Ditch Hydro, even though that entity has been working with state authorities to develop a project at the same site. This appears to us to be a type of unwarranted “claim-jumping.” Because the issuance of a preliminary permit is within our discretion, we decline to do so here. Moreover, in order to avoid similar situations in the future, we will, as a general matter, decline to issue preliminary permits for projects in Hawaii that would be subject to permissive section 4(e) licensing. This proceeding demonstrates the potential for the Commission’s preliminary permitting process to interfere with hydropower development that is proceeding in accordance with a legitimate state authorization process.

Quinn v. Facebook

This was filed in U.S. District Court in Honolulu Tuesday. The class action complaint is here. From the complaint:

3. Facebook maintains personal information pertaining to each individual as well as monitors the individual online habits of its users keeping track of websites they visit.

4. Upon obtaining personal information and/or wire or electronic communications of the Plaintiff, Facebook plotted to use that information for target marketing which pertained to the Plaintiff and the individual Class members, over the Internet.

5. Such conduct was committed in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 as amended by the Electronic Communication Privacy Act of 1986, 18 U.S.C. § 2511, et seq. (the "Wiretap Act").

(link added).

Defense bar - if your court-appointement fees are reduced...

...and if you appeal, at least the appellate court will insist that the judge reducing the request set forth reasons for the reduction.

Suit against Facebook filed in U.S. District Court in Honolulu

The top story on today's Star Advertiser is about a suit filed against Facebook by plaintiff Cynthia D. Quinn, U of H law school Interim Associate Dean for Student Services, and attorney, former Hawaii AG Margery Bronster. I would post a copy of the complaint, but I don't find a hint of it on Pacer. From the article:

The lawsuit is similar to those filed in recent weeks in other states, including Kentucky, California and Louisiana. They all stem from the recent revelation that Facebook placed programs known as tracking cookies on the Web browsers of its users to trace their Internet activity, even if they are not logged on to Facebook. ...The suits were filed under a provision of the federal Wiretap Act that prohibits interception of wire, oral or electronic communications.

Here's a recent informative PCMag.com piece on the California case.

Speaking of the 9th Circuit

...Orin Kerr describes Ninth Circuit nominee Paul J. Watford as a moderate and supports his confirmation.

Another 9th Circuit taser case

The court sitting en banc on a pair of cases decided today (1) that police who tasered a pregnant woman to effectuate her arrest when she refused to get out of her car after refusing to sign a citation when stopped for doing 35 in a 20 zone, and (2) police who tasered a Honolulu woman in her living room when she didn't move away from her husband when police who had entered the home without consent or a warrant moved to arrest him, had violated the fourth amendment rights of both women to be free from excessive force. However, the court also found that not every reasonable officer at the time of the respective incidents would have known beyond debate that such conduct violates the Fourth Amendment, and so the women could not sustain civil suits against the officers. In typically entertaining style, Judge Kozinski disagrees that the cops' actions offended constitutional protections.

According to the majority, “Brooks bears some responsibil- ity for the escalation of this incident.” Majority op. at 19022 (emphasis added). This suggests that the rest of the blame is with the officers. Wrong, wrong, wrong. Brooks is com- pletely, wholly, 100 percent at fault. Had she behaved respon- sibly, she’d have driven away in a few minutes with no complications. Instead, Brooks risked harm to herself, her unborn daughter and three police officers because she got her dander up over a traffic ticket. The officers, for their part, were endlessly patient, despite being called liars and other- wise abused by Brooks. They deserve our praise, not the opprobrium of being declared constitutional violators. The City of Seattle should award them commendations for grace under fire.

Hazards of law blogging

Washington Post

Virginia lawyers who blog about their cases, beware: the state bar may come after you for inappropriate advertising.

At least that’s the message the Virginia State Bar seems to be sending in a case against Richmond criminal defense attorney Horace Hunter. The bar has brought a misconduct charge against Hunter, who blogs on his firm’s Web site about cases he’s worked on, as well as national and local criminal justice issues. Bar authorities contend the blog constitutes advertisement and should include a disclaimer saying it’s an ad. Hunter argues the blog is news and commentary, and the bar’s attempt to get him to tack on a disclaimer is a violation of his First Amendment rights.

So far I've avoided blogging about my own cases and, as I've increasingly integrated into the local legal ...scene? Community? Whatever... and discussed local cases with the lawyers involved, I've felt funny about divulging what I've learned in those conversations and have blogged much less about local legal issues generally.

- Posted using BlogPress from my iPad

Free legal forms and advice

...at the Lihue courthouse where the self help center opened Friday. On my way to the clerk's window Friday afternoon, I saw attorney Tim Tobin manning the desk. (Tim was featured in a Garden Island story a couple of days ago about a jury trial in which he defended a sovereignty activist charged with driving with a fraudulent license).

The Garden Island covers the self help center here.


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Adjusting court rules to adapt to technological hiccoughs

The Hawaii Judiciary -

On October 5, 6 and 7, equipment problems with the Judiciary Electronic Filing and Services System (JEFS) prevented e-filing of electronic documents in the appellate courts. By Hawaii Supreme Court order, October 5, 6 and 7, and each consecutive business day during which JEFS is unavailable for 4 hours or more between 7:45 a.m. and 4:30 p.m., shall be treated as a Saturday, Sunday or holiday for the purposes of computing time under Rule 26 of the Hawaii Rules of Appellate Procedure, HRS Sec. 1-29, and other similar statutes and rules.

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Know your rights

...when encountering law enforcement.

Via the ACLU

For the Plaintiff's Bar: Haw.S.C. overturns Wilson v. AIG - Now, "insureds are real parties in interest in actions against insurers regarding PIP benefits"

From the decision (Ahn v. Liberty Mutual Fire Insurance Company)

In Wilson v. AIG Hawaii Ins. Co., 89 Hawai5i 45, 50-51, 968 P.2d 647, 652-53 (1998), we held that unless an insurer’s non- payment of personal injury protection (PIP) benefits jeopardizes an insured’s ability to reach the minimum amount of medical expenses required to file a tort lawsuit, insureds are not “real parties in interest” allowed to pursue lawsuits seeking payment of PIP benefits to providers. Although a statute expressly gave insureds the right to seek court review of PIP denials, we concluded that insureds do not have legal rights under substantive law to enforce payment of PIP benefits to providers. We also stated that “preservation of the integrity of the therapeutic relationship between physician and patient” was merely an “altruistic concern,” because PIP benefit laws insulated an insured from the billing and payment process.

Due to developments after Wilson, “cogent reasons and inescapable logic” compel us to overrule its holding, and we now hold that insureds are real parties in interest in actions against insurers regarding PIP benefits.

The most important reason, according to the court: "due to Wilson, many doctors stopped accepting accident patients, making needed medical treatment unavailable to many."

ATF memo says gun dealers can no longer sell guns or ammo to registered medical marijuana users

Forbes

Pro-marijuana and gun groups said the policy clarification amounts to rescinding the gun rights for the thousands of people licensed to use medical marijuana laws. And it appears to contradict a 2009 Department of Justice memo that said the Obama administration would not pursue prosecution of individual medical marijuana users who obey state laws.

Here's the ATF's legal analysis from the letter, which the ATF says is in response to "a number of inquiries regarding the use of marijuana for medicinal purposes and its applicability to Federal firearms laws" and is meant to "assist…Federal firearms licensee[s] in complying with Federal firearms laws and regulations."

Federal law, 18 U.S.C. § 922(g)(3), prohibits any person who is an "unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) from shipping, transporting, receiving or possessing firearms or ammunition. Marijuana is listed in the Controlled Substances Act as a Schedule I controlled substance, and there are no exceptions in Federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by State law. Further, Federal law, 18 U.S.C. § 922(d)(3), makes it unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person is an unlawful user of or addicted to a controlled substance. As provided by 27 C.F.R. § 478.11, "an inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time."

Bear in mind, though, that this is the same ATF who thought it was a good idea to intentionally allow smugglers to transport large numbers of guns into Mexico and the hands of drug cartels.

Which reminds me, tonight at my house we're watching part one of Ken Burns' Prohibition on PBS.