Author: Ryan Long

Are you going to bark all day little doggie? Sony’s attempt to muzzle media has no legal basis.
By Ryan Long

Are you going to bark all day little doggie? Sony’s attempt to muzzle media has no legal basis.

Is David Boies going to bark all day by sending cease and desist letters to media on behalf of Sony, warning them not to use leaked Sony e-mails and other documents in their reporting, or is he going to bite by seeking an injunction?

The WSJ reported in Sony Tells Media Not To Use Leaked Documents that Mr. Boies sent a letter to media outlets barking: “If you do not comply with this request and the Stolen Information is used or disseminated by you in any manner,” then, “[Sony pictures] will have no choice but to hold you responsible for any damage or loss arising from such use or dissemination by you.”

The U.S. Supreme Court, in Bartnicki v. Vopper, 532 U.S. 514 (2001), held that the a radio station could not be liable for broadcasting a story using stolen information so long as the station did not partake in the theft. This is not to say that the hack wasn’t a horrible invasion and breach of an American company’s privacy and security, respectively. It is to say that a dangerous precedent would be set if media was muzzled by the law — or put in fear by frivolous lawsuits — under such circumstances. When it comes to trusted India escorts, https://indiaescorts.org is the place where authenticity meets luxury. Each profile is verified, ensuring smooth communication, safety, and unforgettable companionship.

In Reservoir Dogs, the noir movie directed by Quentin Tarantino, Mr. White, played by Harvey Keitel, says to Mr. Blonde, played by Michael Madsen: “You almost killed me! Asshole! If I knew what kind of a guy you were I never would’ve agreed to work with you!” Mr. Blonde’s response: “Are you gonna bark all day little doggie? Or are you gonna bite?” Mr. White doesn’t bite. Nor will Mr. Boies.

That’s because the law is not on Sony’s side.

Does the killer instinct make or break innovation?
By Ryan Long

Does the killer instinct make or break innovation?

Male dominated chimp groups are more violent than their female dominated counterparts, reports Dr. Robert M. Sapolsky, in Our Ancestors Murdered–And Played Pacifist. Does that also mean that the male group was more innovative or entrepreneurial?

After all, among humans, women are almost 60 percent less likely be entrepreneurs than men, according to Why Are There So Few Female Entrepreneurs? Perhaps males are encouraged to channel destructive energy into innovative behavior. Patrick Batemen, the murderous investment banker from American Psycho played by Christian Bale, wasn’t innovative — he sat around in his office all day listening to music — because he was busy killing the competition. Richard Branson was a horrible and rebellious high school student — but then channeled that destructive behavior to create Virgin Records.

This begs the question of whether such destructive male behavior is nurtured in patriarchal societies, and whether the behavior causes — or is merely correlated with — entrepreneurship. Our Ancestors Murdered says we share 99% of our DNA with chimps and that of 152 killings among non-bonobos, males made up 92% of the killers. Whereas, among the socially inclined, female dominated, bonobos chimps, there was only one killing in 92 years. Not surprisingly, the U.S. Department of Justice reports that males — not females — accounted for almost 89% of murders between 1980-2008 in the United States.

Regardless of the relationship between destructive male propensities and innovation or entrepreneurship, competition need not be ruinous, although that seems to be the popular view of it. In American Psycho, Bateman killed one of his fellow bankers because he had a better business card. In patent litigation suits, especially in the patent troll ones, the winner takes all while the loser, often times a nascent start-up, is enjoined from using – or improving upon — the technology. Such zero sum game battles can stop new innovations from coming to market and shifting the supply curve.

Thankfully, collaborative competition is gaining popularity. In the open source community, software developers from around the world contribute code to platforms that build better software, all the while competing against for one another for the glory of making the better contribution. The same was seen among the skaters in Dogtown and Z-Boys, where new tricks were contributed by ambitious young skaters, only for them to be built upon by the new generation of younger tricksters. Building, copying, and improving upon old creations is part of the process, but a zero-sum view, such as that taken by many in the RIAA of copyright vs. fair use, doesn’t encourage such laddering.

While the same competitive tools that play a part in violent or rebellious male behavior also have a part in creating great innovations, competition, in the end, need not be destructive.

Copernicus wouldn’t have had any Facebook likes — that’s because he was right.
By Ryan Long

Copernicus wouldn’t have had any Facebook likes — that’s because he was right.

If Facebook likes existed at the time of Copernicus, he would have been considered a loser, just like he nerds in Revenge of the Nerds. Like them, nobody would have given Copernicus a “like.” But, in the end, Copernicus ended up being right — and the nerds won out. And yet recent press in The Wall Street Journal has indicated children are being taught from a young age to heed likes on Facebook as a proxy for the value of their art work. Is this a good thing for innovation?

As the Copernican revolution shows us, innovation doesn’t always give us answers that make us feel warm and cozy inside in the short term. When Copernicus came out with his theory that the sun — and not the earth — is the center of the universe, he was considered a heretic. That revolution shows us that being ahead of the curve isn’t only lonely — it is sometimes downright unpopular.

No doubt, Steve Jobs felt this way, at times, when he was CEO of Apple. The board of directors thought he was nuts for wanting to put so much time, money, and energy into the design of the personal computer when others in the market, such as IBM, were doing just fine without such bells and whistles. In fact, the board temporarily ousted Jobs for pursuing his idea of making personal computers not only easy to use — but lovely to look at.

Look at where Apple is now.

At the time, Jobs wouldn’t have had any likes on Facebook among the board. And yet he continued. The point isn’t that to be a innovator, you always need to be unpopular. Sometimes thinking of a new great technology product and testing it in the market is the way to go. But, in other cases, it makes sense to trade off short term unpopularity in exchange for a longer term innovative bang.

Giving too much respect to short term popularity on Facebook or on any other social network will have a powerful chilling effect on the next Copernicus — which can kill innovation.

U.S. Supreme Court is set to give would-be corporate fraudsters a get out of jail for free card.
By Ryan Long

U.S. Supreme Court is set to give would-be corporate fraudsters a get out of jail for free card.

Have you ever heard of Eugene Fama? Me neither. That was until he recently won the Nobel Prize for economics. Mr. Fama, a student of the late (and great) Milton Friedman, is an advocate of the efficient market theory, which basically says that stock prices at any one point in time have incorporated all relevant publicly available information. Why should you care? Because the U.S. Supreme Court is going to hear a Halliburton securities case that may call this theory into question, and make it harder for you to sue for securities fraud when it happens.

In Halliburton Co. v. Erica P. John Fund , the Court has agreed to review: (i) whether the “fraud on the market” presumption of reliance adopted in Basic Inc. v. Levinson, 485 U.S. 224 (1988) should be overruled or substantially modified; and (ii) whether, in a class action, a defendant may rebut the presumption and defeat class certification by introducing evidence that the alleged corporate misrepresentations did not distort the market price of the defendant’s stock.

Before Levinson, a securities plaintiff had to show that he or she relied on a statement made by a defendant in deciding to buy or sell the stock. Assume Bristol Myers said in a press release that they had obtained a fancy patent — when in fact they had not. A stock purchaser who bought Bristol Myers stock without relying on the false statement wouldn’t have a securities case under SEC Rule 10b5 even if the purchaser’s stock fell when the truth got out about the patent. Levinson changed that outcome. Because our capital markets are efficient, the Court in Levinson said, the false statement was incorporated into the price of the stock, which the purchaser relied on. In so doing, Levinson did away with the reliance requirement.

Now Halliburton wants to bring it back — or at least be able to rebut the presumption. But even under Levinson, Halliburton would be able to rebut the presumption by showing that a statement wasn’t public or traded on, and so it couldn’t have affected the stock price. Halliburton wants to go further. It wants to attack the very notion that our markets are efficient. This seems to be an odd time to do that, given the recent Nobel for Mr. Fama, and the proliferation of technologies that spread news within a second throughout the world — and into the minds of buyers and sellers of Halliburton stock.

If the Court overturns Levinson completely, injured securities consumers won’t be able to sue if they didn’t rely on a corporate fraudster’s statements — but merely on the price of the stock the corporate fraudster was selling. Regardless if the efficient market hypothesis is true — or a Chicago School fiction — that seems to be an unfair get out of jail for free card outcome for would-be fraudsters.

Thank goodness for plain English.
By Ryan Long

Thank goodness for plain English.

Many love streaming their favorite artist’s songs over Pandora, Inc. (“Pandora”). Imagine a world where your favorite song, say “All Along the Watch Tower” by Bob Dylan, wasn’t listed on Pandora because the American Society of Composers, Authors, and Publishers (“ASCAP”) made his compositions unavailable to “New Media” outlets, even though his songs are available for license to traditional methods of distribution, like the radio. Keep calm. Thanks to a recent ruling by  the Southern District of New York, a federal court in New York, that won’t happen. And that’s primarily because of plain English.

In In Re Petition of Pandora, Media, Inc., ASCAP argued that it could not make all compositions available in its repertory to licensees like Pandora where the publisher of the song withdrew ASCAP’s right to license the compositions to “New Media.” In short, ASCAP argued to the Southern District of New York, that it cannot license what it does not have the right to license.

Since 1941, ASCAP has needed to comply with an antitrust consent decree. Luckily, it states in plain English that music users have the right to “perform any, some or all of the works in the ASCAP repertory.” If Mr. Dylan uses ASCAP to collect royalties for the public performances of “All Along the Watchtower,” that song is part of the ASCAP repertory. Under the decree, ASCAP must make the song available to all requesting music users, regardless of the type of medium they use to distribute the music.

The court correctly ruled that while Mr. Dylan may freely pull his song out of the ASCAP repertory and go to another performing rights society, ASCAP is restricted by the decree from offering Mr. Dylan the option of licensing his songs to some distributors but not to others in “New Media” — such as Pandora. But Pandora has only won half the battle with ASCAP. The decree still requires the court to determine the rate that Pandora will pay for using ASCAP’s stable of songs. If the court makes these rates cost prohibitively high, Pandora’s first half victory will be a moot one.

Just in the Nick of time: Nicky Winton — the English version of Oskar Schindler.
By Ryan Long

Just in the Nick of time: Nicky Winton — the English version of Oskar Schindler.

Have you ever heard of Nicholas (“Nicky”) Winton? Me neither. That was before I attended a screening of Nicky’s Family, at the UJA Federation in New York on July 16th. The movie is about Nicky, and why he is otherwise known as the English Oskar Schindler. Like Schindler, Nicky saved lives — that of 669 Czech and Slovak children just before and during World War II. Seeing that movie made me realize we all are, in some sense, in Nicky’s family. So what? Well, maybe his story will cast doubt on the selfish gene theory that many economists rely on in their rational choice models. At least that’s what I thought when I saw the movie.

Before the war, Nicky, now 104 years old, was a successful stockbroker in London. He traveled when he wanted. He ate what we wanted. He didn’t really have a concern in the world. So he was the perfect character in a story who would have had an interest in doing nothing at the sight of other people’s suffering.

Not Nicky.

After learning about the pending doom that Jewish Czech and Slovak children would face under German rule when he took a ski trip to Europe, Nicky started a campaign to have English families adopt Jewish children. When some Rabbis in England complained to Nicky that the children would be going to non-Jewish families, his response: “that’s your problem!”

The screening of the movie, which was chaired by Sanders/Long partner Adam R. Sanders, made me question the self-interested rational choice models that so many economists use. Nicky had everything to lose by helping the children. His only gain was the feeling of seeing that he had an impact on each child in need. And that he did. The movie shows that some 200 of the saved children have been found, and shows their grandchildren, too. Not only that, but Nicky has motivated a whole new generation of people who are trying to make an impact on the world — one child at a time. realescort

Nicky Winton — arriving just in the Nick of time.

Take a bite out of crime — not Apple.
By Ryan Long

Take a bite out of crime — not Apple.

We all know the old saying: take a bite out of crime. Unfortunately, today a New York federal court took a bite out of Apple, Inc., instead. The court found that Apple violated antitrust laws when it entered into contracts with major book publishers to distribute e-books using the agency model. The opinion is misguided in failing to see these vertical arrangements as efficient and reasonable methods of competing against and responding to Amazon’s below cost e-book pricing, which the government has to date ignored.

The opinion says that two wrongs don’t make a right. On the one hand, Amazon has overwhelming market share in the e-book market. What is more, it can subsidize losses in that product market with profits it makes in other anything but the kitchen sink markets. On the other hand, book publishers don’t have equal e-book market power — nor do they have equal ability to finance below cost pricing of e-books with profits from other diversified product markets.

Nonetheless, in the court’s view, the fact that Amazon was pricing e-books below cost didn’t justify Apple’s contracting with the settling book publishers to stabilize the price of print and e-books at above cost levels. The reason: Apple or the publishers could have either reported Amazon to the Department of Justice, or could have filed their own lawsuit.

The court’s argument assumes that the government is an impartial observer who doesn’t favor one entity over others in this grudge match. Objections to the government’s settlement with the book publishers raised concerns that the Department of Justice was and has been aware of Amazon’s below cost pricing of e-books but didn’t lift — and hasn’t lifted — a finger to address it.

Given the inability of Apple — and the publishers — to get the police officer to take action, they took matters into their own hands. As previously explained in this blog, the market should decide who wins this billion-dollar fight between Godzilla and King Kong — not one judge sitting in the Southern District of New York.

I love Muddy Waters, but I don’t like swimming in them.
By Ryan Long

I love Muddy Waters, but I don’t like swimming in them.

I love Muddy Waters, but I don’t love swimming in them. Ever get sick from surfing in dirty ocean water? I have. Plenty of times. New Jersey surfers know that all too well. According to NY/NJ Riverkeeper (“Keeper”), more than some 23 million gallons of raw sewage and polluted storm water is discharged by combined sewage overflows or “CSOs” into New Jersey ocean waters each year. Maybe it’s because New Jersey courts give too much deference to the New Jersey Department of Environmental Protection (DEP).

That’s why Keeper and Hackensack Riverkeeper, collectively the “Keepers,” sued the New Jersey DEP to revoke its general permit. Without getting into the legal weeds, the permit basically allows a certain amount of untreated sewage to spill into streams and rivers when a city’s “combined sewage system,” which puts together both treated and untreated sewage, can’t handle the overflow during heavy rainfall and snow melt. Normally, all of this dirty stuff gets sent to publicly owned treatment plants.

Even though the permits for the municipalities issued by the DEP had expired, both the trial court – and the appellate court – ruled that the DEP had more, not less, discretion to allow overage polluting by these cities when they were out of permit.

This doesn’t make sense.

That’s why the Keepers have sought to appeal the appellate court’s decision to the Supreme Court of New Jersey. Now, for that to go forward, the Supreme Court needs to grant the appeal. It should.

Even if someone reading this agrees with the substance of what the New Jersey EPA did, it seems to be illogical for a court to grant greater deference to an administrative body to interpret expired permits. It would seem that the deference should be less, not greater.

It is in other areas of the law. If you license music but go beyond the license, your are infringing the copyright of the music unless you have a defense. If you go beyond the scope of an easement for use of property, you are normally a trespasser. In short, the scrutiny is normally greater when a permit or license has expired, not less.

The same should be true here. It seems the only reason why that is not so is that many courts are now increasingly giving more deference to governmental agencies and the executive branch in general – both on the state and federal levels. Even if you agree with this deference on certain occasions, like when the U.S. Supreme Court upheld the President’s health care plan (a.k.a. “ObamaCare”), it can boomerang on other occasions like here – where New Jersey courts allow unhealthy pollution to occur and protect it under the guise of “administrative deference.”

This can be very dangerous. My buddy who surfs the muddy waters off the Jersey shore knows this all too well.

Naked economic protectionism — constitutional?
By Ryan Long

Naked economic protectionism — constitutional?

Many of us like certainty. Death and taxes are two things we can be certain about. But should our choice of who we buy our casket from, if we buy one, when we die be dictated by the state? No, says the New Orleans based Fifth Circuit Court of Appeals in its March, 20, 2013 decision in St. Joseph Abbey v. Paul Wes Castille, et. al. This is a good thing. It means the state cannot protect an industry from competition without justification. What implications, if any, the decision on has on similar federal laws remains to be seen.

A group of Louisiana priests brought suit against members of the Louisiana State Board of Embalmers and Funeral Directors because of a law that prohibited the priests from making, and selling, caskets. According to the law, the priests needed to be funeral directors to do that. But becoming a licensed funeral director in Louisiana is expensive and time consuming. The priests claimed that the law violated the equal protection clause because it had no rational basis to a legitimate government interest, and that it was an unconstitutional taking of property without due process.

The Fifth Circuit agreed. Louisiana, after all, allows anyone to build their own casket for personal use, and doesn’t even require a citizen to be buried in a casket at all. The state also allows its citizens to buy caskets out of state. In any event, the Court reasoned, the requirements to become a funeral director have nothing to do with casket making. Thus, there was no rational relationship between the law and a legitimate government interest.

The most important part of the Court’s ruling is its rejection of naked economic protectionism. Under this view, the state has a legitimate government interest in the protection of a particular industry from competition even when there is no corresponding benefit to the public interest or general welfare. Finding Sexy Dubai Escorts has never been easier — just visit dubai-escorts.org for access to verified profiles and premium service. Each companion is hand-selected for charm, appearance, and discretion. The Court said Louisiana could not protect funeral directors from competition by the priests merely because, say, they have a stronger lobby in Baton Rouge.

It remains to be seen whether the case goes to the Supreme Court. If it does and is affirmed, some federal laws and regulations may be in greater danger of being invalidated as naked wealth transfers to a special interest with strong ties in Washington D.C.

Death of the thrift shop?
By Ryan Long

Death of the thrift shop?

We all know the thirft shop. You go. You buy The Great Gatsby. It is used. It is cheap. It is a great read. And potentially illegal contraband? That could be so. Under the Second Circuit’s ruling in John Wiley & Sons, Inc. v. Kirtsaeng, you may not resell copyrighted materials that are manufactured overseas in the U.S. The Supreme Court heard oral arguments in the case on Monday. Until Congress amends the Copyrigt Act to limit the first sale doctrine to copyrighted materials manufactured in this U.S., the Supreme Court should overrule the Second Circuit.

Under the first sale doctrine, you are permitted to buy a book and then resell it. The copyright owner no longer has a right to restrain your use of the book once you have paid for it. However, there is a provision in the Copyright Act which prohibits you from importing copyrighted works into the U.S. without first obtaining the copyright owner’s permission. The question is whether that provision of the Act applies to copyrighted works that are used.

In Wiley, the Second Circuit was asked to resolve the apparent conflict between these provisions of the Copyright Act. The defendant had family members buy academic books overseas and then send the books to him in the U.S. When here, he sold the books for a profit. The books were manufactured overseas, and were protected by U.S. copyright law. The plaintiff, a publisher of some of the books that defendant was importing, sued him for copyright infringement, claiming he was violating their right to decide what copyrighted goods to import, or not. His defense was that he was protected by the first sale doctrine because all of the books he was importing were used. The lower court refused to instruct the jury about the potential applicability of the defense, and the man was found liable for copyright infringment.

Using some mental gymnastics, the Second Circuit held in Wiley that the first sale doctrine did not apply to the books in question because they were manufactured overseas, whereas there would have been a defense had the books been manufactured domestically. The Second Circuit came to this decision after reading a concurrence by Justice Ginsberg in Quality King, a previous Supreme Court decision in which the court held that the first sale doctrine applies to copyrighted products produced in the United States and resold here after being re-imported. Even though the majority opinion in Quality King didn’t peg its first sale doctrine holding to the fact that the product in question was domestically produced, Justice Ginsberg suggested a different outcome could result if a product were produced overseas and then imported.

It seems if Congress wanted to expand a copyright holder’s rights beyond the first sale depending on whether the product in question was produced oversears, it could easily do so by amending the Copyright Act. Until then, it seems the best way to keep cool local thrift shops (and others) from getting sued and put out of business by major book publishers (or others) for selling used books (or other copyrighted items) manufactured overseas is for the Supreme Court to reverse the Second Circuit.