When is a carcinogenic chemical equal to earthworms? When property law is involved, of course!
Put aside for a moment the fact that there are federal Clean Water Act and Resource Conservation and Recovery Act (RCRA) claims possible here. The case here seeks damages for homeowners whose property values dropped. Homeowners argue that the property value drop is tied to publicity surrounding benzene pollution by Shell Oil. Shell Oil argues that the drop was caused by other forces, including the Great Recession.
The 7th Circuit Court of Appeals (IL and other Midwest states) substantively held that the benzene pollution is akin to other undesirable features common in the ground of everyone's homes like insects and worms. A key fact leading to this ruling is that the drinking water for the affected class comes from an unpolluted source not threatened by the benzene. Had the drinking water itself been polluted, the court opines that the connection might be strong enough to support damages.
Wednesday, January 22, 2014
Tuesday, January 21, 2014
BETAMAX Case Transported to the 21st Century in Aereo
The name BETAMAX conjures up memories of the 80's, but it should also make you think of Netflix, video rentals, your DVR or TiVo, and cloud storage. Without the BETAMAX case in the 1980's, no recording devices would have been allowed and viewers would have never have had the opportunity to enjoy time-shifting and watching programs on their own schedule. Now SCOTUS is considering a case that brings the argument into the 21st Century.
In the 1980's, Sony was sued by Universal and Disney to block production of BETAMAX recording devices. BETAMAX, for those of you under 30, was a rival technology to the VCR (which eventually became the standard) that allowed users to record shows broadcast on TV or cable or satellite so that users could watch them when they wanted.
Universal and Disney were arguing that copyright protections would be eroded forever and that Fair Use (sampling an 80's song for a new rap song, for example) would be expanded beyond recognition.
The Supreme Court (SCOTUS) ultimately held that people could record portions of a show or the entire show so long as their intent was to watch the program later. Second, people could even resell or rent recordings of programs to others for profit so long as the recording has a substantial, legitimate use (i.e. was aired on free broadcasting channels, not cable).
We are all used to the first holding, but the second holding might be new to you. Expect the second part to hit the news as SCOTUS is now considering the Aereo case, the first major case since BETAMAX to examine the boundaries of time-shifting programming.
Aereo has created technology that uses a system of small antennas in an urban area to take live programming offered over the air by local broadcasters and stream it to subscribers who pay Aereo a fee for the service. Aereo's target customers are those who have cancelled cable and satellite and who use Netflix, Hulu, iTunes, Apple TV, and the other myriad Internet-based programming solutions. With Aereo, a person could watch live sports (think the Big Game for the NFL or March Madness) without paying for cable or satellite.
Aereo argues that it is simply a super-charged "rabbit ears" (back in the dark ages, people used antennas to watch TV, kids). Broadcasters are arguing that their creative content (and copyrights) are being infringed upon. Broadcasters also want use fees from the transmissions like they receive from cable and satellite providers.
If Aereo's argument prevails, broadcasters like FOX & CBS have threatened to move to cable, so this case has far-reaching implications.
In the 1980's, Sony was sued by Universal and Disney to block production of BETAMAX recording devices. BETAMAX, for those of you under 30, was a rival technology to the VCR (which eventually became the standard) that allowed users to record shows broadcast on TV or cable or satellite so that users could watch them when they wanted.
Universal and Disney were arguing that copyright protections would be eroded forever and that Fair Use (sampling an 80's song for a new rap song, for example) would be expanded beyond recognition.
The Supreme Court (SCOTUS) ultimately held that people could record portions of a show or the entire show so long as their intent was to watch the program later. Second, people could even resell or rent recordings of programs to others for profit so long as the recording has a substantial, legitimate use (i.e. was aired on free broadcasting channels, not cable).
We are all used to the first holding, but the second holding might be new to you. Expect the second part to hit the news as SCOTUS is now considering the Aereo case, the first major case since BETAMAX to examine the boundaries of time-shifting programming.
Aereo has created technology that uses a system of small antennas in an urban area to take live programming offered over the air by local broadcasters and stream it to subscribers who pay Aereo a fee for the service. Aereo's target customers are those who have cancelled cable and satellite and who use Netflix, Hulu, iTunes, Apple TV, and the other myriad Internet-based programming solutions. With Aereo, a person could watch live sports (think the Big Game for the NFL or March Madness) without paying for cable or satellite.
Aereo argues that it is simply a super-charged "rabbit ears" (back in the dark ages, people used antennas to watch TV, kids). Broadcasters are arguing that their creative content (and copyrights) are being infringed upon. Broadcasters also want use fees from the transmissions like they receive from cable and satellite providers.
If Aereo's argument prevails, broadcasters like FOX & CBS have threatened to move to cable, so this case has far-reaching implications.
Monday, January 20, 2014
Cell Phone Search Cases to be Decided This Session by SCOTUS
Big news this past Friday that SCOTUS (Supreme Court of the US) will take up two cases related to warrantless searches of arrestees' cell phones.
As a general matter, the 4th Amendment requires police to obtain a warrant before searching or seizing one's personal effects. However, SCOTUS has established several exceptions to the general rule including an exception that, after one is arrested, police may search and seize items on the person or within the person's wingspan in order to promote officer safety and prevent destruction of readily-available evidence.
The question being considered by SCOTUS in these cases is whether cell phones are unique because of the wealth of hyper-personal information contained within them or whether they are indistinguishable from other personal effects like car keys, wallets, address and appointment books (remember those?), folded handwritten notes, and the like.
Circuit courts are split on the issue and the hope is that SCOTUS solves the circuit split and provides a clear rule (preferably clearer than the GPS ruling last session!) on the treatment of arrestees' cell phones.
As a general matter, the 4th Amendment requires police to obtain a warrant before searching or seizing one's personal effects. However, SCOTUS has established several exceptions to the general rule including an exception that, after one is arrested, police may search and seize items on the person or within the person's wingspan in order to promote officer safety and prevent destruction of readily-available evidence.
The question being considered by SCOTUS in these cases is whether cell phones are unique because of the wealth of hyper-personal information contained within them or whether they are indistinguishable from other personal effects like car keys, wallets, address and appointment books (remember those?), folded handwritten notes, and the like.
Circuit courts are split on the issue and the hope is that SCOTUS solves the circuit split and provides a clear rule (preferably clearer than the GPS ruling last session!) on the treatment of arrestees' cell phones.
Friday, January 17, 2014
Florida's Right to Privacy
An owner of websites that publish names and likenesses of recent Florida arrestees will have to defend himself against invasion of privacy claims according to this federal ruling.
Florida's right to privacy is much more explicit and stronger than its federal counterpart. Unlike the US Constitution, Florida's Declaration of Rights includes a specific protection against the government intruding into your private life.
But what about intruders that aren't the government? In addition to the recognized common-law tort of invasion of privacy, Florida Statutes Section 540.08 prohibits companies and individuals from using your name, picture, or likeness without your express permission. The protection even lasts after you die (a designee or family member must then provide the consent).
This website was a commercial website according to the federal ruling because it received advertising revenue and provided a way for recent arrestees to pay the website to remove the arrestee's picture and name from the site.
From here, the defendant website owner will fight to win on the merits of the case. The case is still in its early stages and there is no timeline for the final decision yet.
Florida's right to privacy is much more explicit and stronger than its federal counterpart. Unlike the US Constitution, Florida's Declaration of Rights includes a specific protection against the government intruding into your private life.
But what about intruders that aren't the government? In addition to the recognized common-law tort of invasion of privacy, Florida Statutes Section 540.08 prohibits companies and individuals from using your name, picture, or likeness without your express permission. The protection even lasts after you die (a designee or family member must then provide the consent).
This website was a commercial website according to the federal ruling because it received advertising revenue and provided a way for recent arrestees to pay the website to remove the arrestee's picture and name from the site.
From here, the defendant website owner will fight to win on the merits of the case. The case is still in its early stages and there is no timeline for the final decision yet.
Wednesday, January 15, 2014
Florida's Living Will Law As Applied to Pregnancy
The importance of making a living will has been getting a lot of publicity after the husband for a pregnant Texas woman, brain dead for almost two months, began his fight to end life support despite the pregnancy. Texas law arguably prohibits ending life support for a person who is pregnant. But what does Florida law say?
WHAT YOU NEED TO KNOW: Florida Statutes Section 765.113 requires that a person EXPLICITLY state that they do not want life-prolonging procedures if their child is not yet viable.
A "blanket" living will designating a surrogate to make decisions on your behalf might not be enough. If you want to ensure that your wishes are followed, you need to explicitly state in your living will that you do not want medical staff to keep you on life-prolonging machines and techniques to bring your child to viability.
It also is a good idea to include an explicit statement if you DO want life-prolonging measures taken to save the baby even if you will not be able to be revived.
WHAT YOU NEED TO KNOW: Florida Statutes Section 765.113 requires that a person EXPLICITLY state that they do not want life-prolonging procedures if their child is not yet viable.
A "blanket" living will designating a surrogate to make decisions on your behalf might not be enough. If you want to ensure that your wishes are followed, you need to explicitly state in your living will that you do not want medical staff to keep you on life-prolonging machines and techniques to bring your child to viability.
It also is a good idea to include an explicit statement if you DO want life-prolonging measures taken to save the baby even if you will not be able to be revived.
Tuesday, January 14, 2014
Pets are Property, But Should It Be A Crime to Deny Ownership?
Pet lovers might not like this story very much, but the topic is worth discussion.
The law takes a very harsh look at pets. Simply put, pets are viewed as personal property like your television, wallet, and car. Pets have no "special" rights and disputes over pets are treated just like any other property dispute. That includes the "legal fiction" that damages can make the owner "whole" if their pet (property) is damaged or destroyed (killed).
As for the story itself, The District of Columbia has a law on the books that makes it a crime for a person to deny ownership of an animal when in fact they are the true owner of the animal. Exemptions exist for pet shops, animal shelters, and the like; but an individual owner faces a fine each time they deny ownership of their pet.
The plaintiff in this story is challenging the law based on the First Amendment. The plaintiff is an animal activist whose public speaking tour includes a message seeking to make the audience reevaluate the traditional notions of "pet" and "owner". He has declined public speaking appearances in the District to avoid violating the law.
The law takes a very harsh look at pets. Simply put, pets are viewed as personal property like your television, wallet, and car. Pets have no "special" rights and disputes over pets are treated just like any other property dispute. That includes the "legal fiction" that damages can make the owner "whole" if their pet (property) is damaged or destroyed (killed).
As for the story itself, The District of Columbia has a law on the books that makes it a crime for a person to deny ownership of an animal when in fact they are the true owner of the animal. Exemptions exist for pet shops, animal shelters, and the like; but an individual owner faces a fine each time they deny ownership of their pet.
The plaintiff in this story is challenging the law based on the First Amendment. The plaintiff is an animal activist whose public speaking tour includes a message seeking to make the audience reevaluate the traditional notions of "pet" and "owner". He has declined public speaking appearances in the District to avoid violating the law.
Monday, January 13, 2014
SCOTUS Bursts NCAA's Video Game Appeal Bubble
Sports game fans and NCAA supporters had a rough day with SCOTUS (Supreme Court of the United States).
A brief background: Former collegiate players sued the NCAA for making profits off the players' names and likenesses. Those of you who have played EA Sports games in the past are no doubt familiar with players named "PF 31" for UCLA with Ed O'Bannon's height, weight, and attributes. Plaintiffs alleged misappropriation, a privacy tort that prevents tortfeasors from using one's name or likeness for pecuniary gain (profit) without the person's consent.
The gist of this ruling: Players won against the game providers and several arms of the NCAA. The NCAA chose not to appeal the decision and some argue tried to "freeload" their way through the appeals process, never thinking that EA and others would actually settle. But the companies did settle (goodbye NCAA Football & Basketball games) and now the NCAA is on the outside looking in (much like Kentucky in last year's NCAA Men's Basketball Tournament).
After the appeals lawsuit was settled between EA and the players, the NCAA's First Amendment arguments disappeared and the NCAA petitioned SCOTUS to intervene with their First Amendment arguments. SCOTUS rejected the motions to intervene today, endangering the NCAA in their attempts to rejoin the legal arguments.
A brief background: Former collegiate players sued the NCAA for making profits off the players' names and likenesses. Those of you who have played EA Sports games in the past are no doubt familiar with players named "PF 31" for UCLA with Ed O'Bannon's height, weight, and attributes. Plaintiffs alleged misappropriation, a privacy tort that prevents tortfeasors from using one's name or likeness for pecuniary gain (profit) without the person's consent.
The gist of this ruling: Players won against the game providers and several arms of the NCAA. The NCAA chose not to appeal the decision and some argue tried to "freeload" their way through the appeals process, never thinking that EA and others would actually settle. But the companies did settle (goodbye NCAA Football & Basketball games) and now the NCAA is on the outside looking in (much like Kentucky in last year's NCAA Men's Basketball Tournament).
After the appeals lawsuit was settled between EA and the players, the NCAA's First Amendment arguments disappeared and the NCAA petitioned SCOTUS to intervene with their First Amendment arguments. SCOTUS rejected the motions to intervene today, endangering the NCAA in their attempts to rejoin the legal arguments.
Friday, January 10, 2014
Virginia Appeals Court Reacts to Defamatory Postings from Anonymous Authors
Many areas of the law are ancient and slow to change (think Contracts). But defamation is not one of them and that is why I am so fascinated by it.
Case in point: a Virginia Appeals Court has ruled that Yelp, a popular online review site, must disclose the names of seven anonymous posters who allegedly defamed a carpet cleaning service. In fact, the posters were not customers and had posted malicious comments alleging they were overcharged for services not ordered and the like.
WHAT YOU NEED TO KNOW: Defamatory language is not protected by the First Amendment of the U.S. Constitution or Florida's Declaration of Rights. If you post something "anonymously", that doesn't mean that your identity will be protected. Services like Yelp, in their Terms of Service, protect identities for "opinions" posted on their sites. If you are posting maliciously, the post is not your "opinion". Therefore, you are violating the Terms of Service for the site and sites can freely disclose your identity, even if there is no pending lawsuit.
If, as in this case, the online provider resists efforts to disclose identities, this court opinion suggests that, upon a showing that the post is from a non-customer, the court can compel the service to disclose the identity of the poster.
With the identity known, rest assured that the business will file a defamation suit against the poster. Be careful what you write on the Internet, even if you are posting anonymously.
Source: http://www.courthousenews.com/2014/01/09/64385.htm
Case in point: a Virginia Appeals Court has ruled that Yelp, a popular online review site, must disclose the names of seven anonymous posters who allegedly defamed a carpet cleaning service. In fact, the posters were not customers and had posted malicious comments alleging they were overcharged for services not ordered and the like.
WHAT YOU NEED TO KNOW: Defamatory language is not protected by the First Amendment of the U.S. Constitution or Florida's Declaration of Rights. If you post something "anonymously", that doesn't mean that your identity will be protected. Services like Yelp, in their Terms of Service, protect identities for "opinions" posted on their sites. If you are posting maliciously, the post is not your "opinion". Therefore, you are violating the Terms of Service for the site and sites can freely disclose your identity, even if there is no pending lawsuit.
If, as in this case, the online provider resists efforts to disclose identities, this court opinion suggests that, upon a showing that the post is from a non-customer, the court can compel the service to disclose the identity of the poster.
With the identity known, rest assured that the business will file a defamation suit against the poster. Be careful what you write on the Internet, even if you are posting anonymously.
Source: http://www.courthousenews.com/2014/01/09/64385.htm
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