You Don’t Owwwwwwn Me!


Selfies. Everywhere. They’re your friends’ updates; proof of travels and adventures; they even come on sticks. For one photographer, selfies also imply a giant mess of legal battles.

Although many of us consider our pets to be members of the family, the law unfortunately sees things differently. Animals, in general, are not of equal footing with respect to legal rights. Stemming from the notion that legal relationships ‘exist between persons’ and not between ‘persons and things’ or between ‘things and things,’ animal rights activists have long-fought an uphill battle to extend certain rights and protections to our furry friends. If you were to ask PETA (People for the Ethical Treatment of Animals), this recognition extends even to ownership of copyrights.

In 2011, photographer and conservationist David Slater sought to increase awareness of endangered macaque monkeys in Indonesia. After slowly earning the animals’ trust, he was able to get the shot of a lifetime – or rather, Naruto the monkey did… And that’s where things start to get tricky. Wikimedia used the image without crediting Slater, arguing Naruto, not Slater, took the picture; and, because monkeys can’t own copyrights, the image is therefore within the public domain. When Slater later published a book with this image, PETA – piggy-backing off of Wikimedia’s argument – sued Slater on the grounds that “while the claim of authorship by species other than homo sapiens may be novel, ‘authorship’ under the Copyright Act, 17 U.S.C. § 101 et seq., is sufficiently broad so as to permit the protections of the law to extend to any original work, including those created by Naruto.”

The case was dismissed, finding that monkeys cant own copyrights. PETA appealed, raging the battle forward, while nearly bankrupting Slater. Finally, however, a settlement agreement has been reached. By the parties’ terms, Slater will donate a fifth of future revenue from the images to charities dedicated to protecting crested macaques in Indonesia.

So, what did we really learn here?

I have no idea. But, at least for now, that bone you gave your dog is still technically yours.


Finding Location… Giving Location

60962456Think your cell phone location is private? Think again…

Privacy advocates took a major blow this week with a 4th Circuit Court of Appeals 12-3 ruling on cell phone location data. The decision out of Virginia upheld that consumers have “no reasonable expectation of privacy” because the information is ‘willingly given’. In other words, because you ‘agree’ to use your location in cell phone services and apps, that information can be collected and used without a warrant.

The Fourth Amendment to the U.S. Constitution protects personal privacy and the right to be free from ‘unreasonable government intrusion’ into their persons, homes, businesses, and property. The “search and seizure” protections require law enforcement agencies to obtain a warrant from the court to so intrude, with an exception – the “third-party doctrine”.

Under this legal theory, consumers who knowingly and willingly surrender information to third-parties have “no reasonable expectation of privacy” in the information provided – regardless of how much information there is, or how revealing it may be. Research clearly shows that cell-site location data collected over time can reveal significant personal information — including where you live, where you work, when you travel, who you meet with, and who you sleep with. So when do you willingly surrender that data? … More often than you think.

Unfortunately, technological growth outpaces the law. As our society becomes more and more dependent on the technology we use, and we grow more numb and complacent to the services required for that use, an increasing burden is placed on our legal system to keep up and evolve. In the meantime, consumers must remain vigilant in understanding what rights and protections they sign away for the conveniences provided.

Distracted Walking Pays Out Big

blog_texting_while_walking_fort_leePay attention, people… Or, don’t, get injured, and sue for outrageous damages.

Sounds silly, right? Well, for a Georgia jury, that scenario just landed a $161,000 pay day.

DeToya Moody of DeKalb County just won what could be a landmark precedent for jury damages in cases of texting negligence. While walking down the sidewalk and texting, Ms. Moody hit her head on the ladder of a bucket truck – – a stationary ladder, surrounded by orange cones, which she had passed three times before. Having suffered a concussion and post-traumatic headaches, she sued… and won… big.

You can read the full story here. The important take-away though is that juries can do some funny things.

At the outset, the truck company had offered $5,000. Ms. Moody’s attorney countered with $75,000. When settlement failed, the matter went to trial seeking $155,000 in damages. The jury felt even this amount was too low and awarded $161,000 (reduced from $175,000 for Ms. Moody’s 8% negligence in the injury). To appeal this award the truck company would have to show the judge to have ‘abused his or her discretion’ in allowing the jury’s award to stand (a difficult standard to win).

We certainly live in a litigious society, but there are reasons so few cases actually go to trial. Despite the facts and the law, one never truly knows how things will play out. In retrospect, and particularly after the costs and time of proceeding through trial, a $75,000 settlement might not have been so bad.

There’s Always Room for J-A-I-L news this week, as I’m sure you’ve already heard – charges were officially filed against Bill Cosby for “aggravated indecent assault“. But what you may not have heard, and is pretty remarkable for the circumstances of this case, is the deadline prosecutors had for doing so.

Here is the timeline:

2004: Now 12 years ago, Andrea Constand originally claimed Cosby had raped her. At the time, prosecutors for Montgomery County, PA declined to press criminal charges. Since then, numerous other women have stepped forward (many in CA, which becomes relevant later); however, prosecutors continued to withhold from pursuing any criminal action.

2014: A year ago, the Associated Press filed a motion to intervene in order to unseal documents related to the Constand lawsuit. From this came the infamous Cosby Deposition, during which he admitted to purchasing  Quaaludes to give to women he wanted to have sex with, and to giving them to at least one woman. Constand claimed to have been one such woman.

December 2015: Pennsylvania prosecutors finally file criminal charges.

So, what changed? Well, for one thing, the statute of limitations…

All states have a statute which limits the amount of time one has to bring certain charges, including crimes. Often, these vary depending on the seriousness of the charge (e.g. murder has no limitation, whereas many misdemeanors must be brought within 1 year). In Pennsylvania, the statute of limitations on major sexual offenses (including aggravated sexual assault) is 12 years – – I’ll give you a second to process that – – and prosecutors had only 2 days left to file charges against Cosby for the sexual assault of Constand.

In California, the statute of limitations is much shorter. So, for all of those other cases I had mentioned, there was little the local prosecutors could have done. But in PA, it’s a different story. So what really has been going on all of these years?

There is no doubt about the level of celebrity involved with this case, including a long-standing legacy of comedy, family, and public moral taught by Mr. Huxtable. And so, perhaps reminiscent of the O.J. Simpson trial, prosecutors must surely have been cautious in approaching such a charge. But while it’s often said “better late than never” (and in many cases that may be true), I can’t help but hope for justice, no matter the fame of the defendant.

If he is innocent, or guilty, let it be decided by a competent court – not by social media, T.V. news, or YouTube comedians.

Contact Sports: Criminal Assault?

89dbec91efb49516c59716551a59474d2b93404a4c10bdef1356841227d02f9bFrom Gladiators of the Pantheon, to “The Gladiators,” a Cleveland Arena Football team, people have always gawked and cheered at the brutal carnage of contact sports. It’s no surprise that rules have been toned down over the years, as civilization moved beyond the aqueducts and chariots of the olde world, but there has inevitably remained a level of physicality.

So where is that line between carnage and sport? For the Contra Costa County prosecutor’s office, it begins and ends with charges for in-game felony assault and battery.

A 15-year-old water polo player from Lafayette, CA is currently facing a criminal sentence for breaking an opponent’s nose during a tournament. Though no foul was called, allegedly captured on video is the “purposeful blow” to the Bellarmine player’s face – – in front of the goal, while playing in the known-aggressive 2-meter position of the known-physical contact sport of water polo.

Ever see a match of water polo? No? Well, imagine rugby, mixed with a dash of soccer, and all while treading water.

California Penal Code, Section 242, defines “battery” as the “willful and unlawful use of force or violence upon the person of another.” Certainly, the element of force is satisfied (just ask the broken nose). But, “unlawful”?

Signing up to play contact sports involves a necessary assumption of risk. Some of these risks are inherently obvious (like being tackled); some risks, on the other hand, are certainly not consented to by a player’s participation (like being intentionally kicked in the face). But society requires a balancing effort to both encourage sport and vigorous competition, and to discourage ‘foul’ play.

Cases like this have already been adjudicated across the country. Many states have adopted holdings that a player’s conduct must be more than a game’s rule violation, and more than ordinary negligence (that is, a lack of reasonable care under the circumstances). The defendant-player must be shown to have acted with intent to injure or with reckless disregard for the safety of the injured player. Conduct is “reckless” if the risk is known but consciously disregarded. In other words, the courts have set a particularly high bar when an athlete attempts to sue another player.

Still, it will be interesting to see what kind of precedent this case sets for high school sports.