Big Patent Holders & Big Patent Law Firms Bring Judges To Belgium For Boondoggle...

from the conflict-of-interest? dept

Capitalist Lion Tamer points us to the troubling news that an organization of patent holders has organized a conference and is flying in a bunch of judges who deal with patent issues from around the globe to hang out with them at a conference for a few days. As Kevin Outterson notes, this seems like a major conflict of interest:

Does anyone see a conflict of interest when the world’s richest patent owners fly judges from all over the world to a 3-day conference in Brussels?  Here's the lede:

Bringing nearly 100 judges from more than 30 countries to Europe.  Sharing experiences among patent-experienced judges from many countries and between the patent bench and bar.

This gathering won't hear from patent skeptics.  The Platinum sponsors are Akin Gump, Du Pont, ExxonMobil, Finnegan, P&G and Johnson & Johnson.  The program committee is unabashedly pro-IP.  No voice for the public domain; MSF, Oxfam, Jamie Love, Sean Flynn and other public interest voices aren't on the program

I'm fine with IP maximalists holding conferences; I'm worried when judges from around the planet are wined and dined while hearing only a pro-IP point of view.

I agree that this is quite troubling. The conference is being organized in part by perhaps the most powerful US patent judge, the chief judge of CAFC, Randall Rader. Rader's a very interesting guy, a fantastic speaker and extremely entertaining -- but he has a huge blind spot when it comes to understanding how patents are regularly used to stifle innovation. Perhaps that explains why the conference that he supposedly helped put together appears to feature none of the many top voices who are worried about where the patent system is today.

Perhaps even more troubling, as Outterson points out, is that this conference -- again, supposedly with Rader's support -- is being sold to patent lawyers (who have to pay $1475 plus travel and lodging to attend) as a way to get access to the very judges who will be handling their cases:

Conference attendees will have an opportunity to share experiences with nearly one hundred judges from around the world. Beginning with a welcome reception on Monday, judges will attend sessions and social events with intellectual property law attorneys and other interested parties.

As Outterson notes, this "sounds like buying social access to IP judges to me." It seems shameful that Rader would allow his name and reputation to be used for such things. It's equally shameful that USPTO boss David Kappos is appearing at the event. Again, it's fine to have events discussing IP issues, and even fine for patent system supporters to put together their own conferences. But it's troubling when the event is presented as a way to access judges, and all of the sponsors and organizers seem to have a particular view on the state of patent law today, which is seriously contrasted by actual evidence and research in the market.

Filed Under: conference, conflict of interest, judges, patents, randall rader

RIAA Lawyer In Limewire Lawsuit Recommended As A Federal Judge

from the judicial-capture? dept

We've talked plenty about "regulatory capture," when people from industry shift back and forth into the federal government and help make the laws that impact the very industries they once took paychecks from (and likely will again in the future). But what about "judicial capture"? There was a lot of buzz recently about the former RIAA lobbyist who became a federal judge for the District Court in DC, and who is now ruling on copyright cases that could have an eventual impact on the RIAA. There may be some other similar situations coming up as well. Someone who prefers to remain anonymous pointed out that Senator Chuck Schumer recently recommended Katherine B. Forrest to serve as a judge in the SDNY district court. Among Forrest's recent cases? Representing the major record labels in their lawsuit against Limewire.

Now, this is not to say that Forrest wouldn't make a good judge. She very well might. This also isn't meant to single out Forrest. It's just that this particular situation, combined with the Howell situation, at least raises some questions about whether or not judicial bias is an issue. It's just not a topic that's discussed all that often. I would imagine that if she did become a judge, she would recuse herself from any RIAA related cases that might come her way. However, at a time when judges are becoming increasingly important in keeping things like copyright lawsuits from getting completely out of hand, shouldn't there at least be some exploration of whether or not judges' previous work experience might bias them in a particular direction?

Filed Under: copyright, judges
Companies: limewire

State Department Spending Millions To 'Train' Foreign Judges About 'Intellectual Property'

from the who-writes-the-curriculum dept

The State Department has put out a press release announcing that it has approved spending $3.36 million next year to "train" foreign judges and other law enforcement officials about "intellectual property." There are 15 different projects, which all come down to various training programs for judges, police, law enforcement in how to kowtow to American industry in dealing with infringement of copyrights, trademarks and patents. Given the way our government seems to think that whatever the industry says is accurate -- no matter how many times it's been disproved -- you have to imagine that any "training" is going to be laughably one-sided. For example, I note that one of the projects is:

Latin American Online Piracy $142,944
Training for judges from Peru, Chile, Brazil, Argentina, Paraguay and Uruguay on combating digital/online copyright piracy crimes.

Except, last I checked, those countries had their own copyright laws, and didn't need to obey US specific laws. In the case of Brazil, for example, it's been contemplating new copyright laws that would be much more respectful of fair use and the public domain. Yet, given the way the State Department has acted in the past on these issues, why do I get the feeling that "fair use" isn't a part of the training campaign?

Filed Under: intellectual property, judges, law enforcement, state department

Judges Allowed To Use Google To 'Confirm Intuition' In Cases

from the well,-there's-that dept

One of the more controversial posts we've had recently concerned the discussion about whether or not jurors should be allowed to use the internet to do research related to a case they are hearing. It seems like most folks here were very much against it, though I think it's something worth exploring in more detail. But, let's take this question a few steps across the courtroom. What about judges? In a recent appeals court ruling, it was found that it's okay for a judge to use Google to "confirm his intuition."

The case involved a bank robber, and a question over whether or not he violated the terms of his release by (you guessed it) robbing another bank. There was a question over what the robber wore that resulted in the Googling:

Chin reviewed several pieces of evidence, including a bank surveillance video showing a robber who wore a yellow rain hat. A yellow rain hat was found in the garage of [Anthony] Bari's landlord.

Noting similarities between the hats, Chin at a hearing said he resorted to Google Inc's search engine for help. "We did a Google search," and "one can Google yellow rain hats and find lots of different yellow rain hats," he said.

While that single point seems to favor the suspect, in providing some bit of reasonable doubt that the yellow rain hat alone proves who it was, the judge, Denny Chin, felt that there was enough overall evidence, and sentenced the guy to three years in jail. However, because of that Google search, Bari appealed, saying this violated federal rules of evidence. However, the appeals court had no problem with it:

In its decision, the appeals court said most federal evidence rules "do not apply with their full force" in proceedings to revoke supervised releases.

Using this "relaxed" standard, it endorsed Chin's effort to confirm his "common sense supposition" that more than one yellow rain hat is available for sale.

But it went further, saying improved broadband speeds and Internet search engines cut the cost of confirming intuitions.

The court said that 20 years ago. "a trial judge may have needed to travel to a local department store to survey the rain hats on offer.
"Today, however, a judge need only take a few moments to confirm his intuition by conducting a basic Internet search," it added. "As the cost of confirming one's intuition decreases, we would expect to see more judges doing just that."

I'm curious to see if the same people, who were horrified at my suggestion that Google searches for juries might not be such a horrible thing, feel the same way in the case of a judge. Because one of the key points raised in the discussion here was that "rules of evidence" were concrete and could never be messed with -- and even suggesting that the concept might be due for an update was pure blasphemy. Yet, here it seems that an appeals court recognizes that modern technology may change how rules of evidence can work.

Filed Under: evidence, google, intuition, judges
Companies: google

Florida Says Judges Can't Even Be Facebook Friends With Lawyers

from the lead-a-solitary-life,-please dept

Earlier this year, we wrote about a lawsuit in North Carolina, where the judge friended one of the lawyers, and read and exchanged messages about the case with the lawyer on Facebook. That, obviously, seemed a bit extreme -- but what about just the plain old act of "friending" between a judge and a lawyer. Down in Florida, they've decided that's simply not allowed at all:

Whether a judge may add lawyers who may appear before the judge as "friends" on a social networking site, and permit such lawyers to add the judge as their "friend."

ANSWER: No.

That doesn't leave much room for ambiguity, does it? But, as Venkat Balasubramani notes, this is somewhat ridiculous. Judges and lawyers often have social relationships beyond the court, and pretending those don't exist just on Facebook seems pretty artificial.

My question to the advisory committee is whether this means that it's now inappropriate for a judge to have lunch with a lawyer friend, or engage in email banter with lawyer friends? Is attending the same party now off limits? I assume these actions would still be viewed as appropriate, given that lawyers and judges interact socially (and publicly) all the time. What's so special about Facebook friendship?

Filed Under: florida, judges, lawyers, social networks

Is It Too Much To Expect Judges In Tech Related Cases To Understand Tech?

from the just-saying... dept

Eric Goldman highlights yet another case where basic technology illiteracy leads a judge to make very questionable statements. In this particular case, a judge declared that because a specific phrase ("spoiled brats") was not found in the metatags of a website, someone who searched on that phrase "would likely not encounter" the page in question. Yes, the actual terms did appear on the page itself -- just not in the metatags. As Goldman notes:

What??? Putting aside the fact that the metatags were ignored by many of the search engines even at the relevant time (back in the late 1990s), this is a backwards way of assessing site visibility for the search term "Spoiled Brats." So what if the term Spoiled Brats wasn't in the metatags if the term was on the page?

Once again, this raises questions about how those who are technically illiterate on specific subjects are able to make rulings where a basic understanding of how the tech works could make a pretty big difference on how a judgment comes out.

Filed Under: judges, metatags, tech

Corrupt Judges Sent Kid Who Made Spoof MySpace Pages To Detention... For Profit

from the wow dept

We've covered a few different cases involving students suspended from school for creating fake social networking profiles of teachers or school administrators. There was even one time we wrote about a principal taking a student to court over a fake MySpace profile (he lost). However, we hadn't heard of kids actually being sent to juvenile detention centers for such antics... until now. An anonymous reader sends in a story from a week ago that highlights how Hillary Transue was given three months in a detention center for setting up a MySpace profile mocking an assistant principal. The sentence surprised pretty much everyone -- as she was a first time "offender," a "stellar student" and the "crime" was pretty minor. But the story is getting attention because it's an example of how some corrupt judges in Pennsylvania were making millions of dollars from kickbacks from certain juvenile detention centers to sentence as many kids as possible to those centers. The story is rather horrifying. The two judges in question have pleaded guilty and will serve 87 months in jail.

Filed Under: corruption, judges, juvenile detention

Ray Beckerman Picks Apart RIAA Lawsuits For Judges' Benefit

from the nice-work dept

Ray Beckerman, as you may already know, is a lawyer in New York who not only has defended numerous people against RIAA lawsuits, but also runs the Recording Industry vs. The People blog, where he chronicles what's going on in these cases. While I believe he sometimes pushes the envelope too far in his claims about what the RIAA is doing, there's no denying that he's been a tremendous force in shining some much needed light on some of the RIAA's more questionable activities, while also helping those who are severely outgunned in various lawsuits.

As numerous folks have sent in, Beckerman has now also written up something of a primer for judges in The Judge's Journal, a publication of the American Bar Association targeted at judges. It basically explains the many problems with the way the RIAA conducts its lawsuits, noting how it often uses questionable means, weak evidence and general bullying tactics in filing its cases. It also relies on the fact that it comes off as more credible than an individual (often defending themselves -- sometimes in jurisdictions far from home). Beckerman highlights all of the problems with the way the RIAA runs its cases, and makes a series of quite reasonable suggestions for judges in how to handle such cases should they show up in court. It's a good guide, that also highlights many of the underhanded tactics that the RIAA uses in filing its cases. It's well worth a read if you haven't seen it elsewhere.

If I have one complaint, it's the same one I leveled against John Duffy recently. While the article does mention Beckerman's website, it does not mention that he represents many clients against the RIAA (including in ongoing trials). That would appear to be something of a conflict of interest, in that he's making a bunch of suggestions for how judges should basically side with his arguments in those cases. I guess I'm learning that such "disclosures" are generally not considered necessary in the legal community.

Filed Under: judges, lawsuits, ray beckerman, riaa

Federal Judge On Obscenity Case Posted Porn Images On His Web Server

from the is-that-good-or-bad? dept

A lot of attention is suddenly getting turned on judge Alex Kozinski, the 9th Circuit chief judge, who (while in the middle of a trial about obscenity) was discovered to have posted pornographic images to his web server in a way in which they were accessible to the public. He didn't post them to a specific page or anything. It's just that he put them in an unprotected directory, and if you knew where to look, you could find them. Basically, it looks like he was just using the directory for personal storage, not realizing that it was publicly accessible, though, at one point he appears to claim he uploaded the images by accident. Some of the images were... extreme. Judge Kozinski described them as "funny" and "I think it's odd and interesting. It's part of life."

Some are saying that he should recuse himself from the obscenity trial, noting that he's no longer objective. However, considering that obscenity is supposed to be based on local standards, that doesn't seem right. If even the judge finds those types of images "funny" or "interesting" and "a part of life," then perhaps that's making it pretty clear that they're not obscene. Saying he needs to recuse himself seems to be presupposing that the images are obscene, which doesn't seem quite right. Rather than being used as a way to tar the judge, doesn't this just raise questions about obscenity laws in the first place?

Filed Under: alex kozinski, judges, obscenity

Quotes From Judges Who Aren't Swayed By Flimsy RIAA 'Evidence'

from the nice-list dept

Ray Beckermann has compiled a nice list of quotes from judges who don't buy into the RIAA's flimsy evidence. It makes for good reading. Here are just a few of the quotes, though you can read them all at Ray's site:

"[W]hen plaintiffs dismissed their claims in June 2007, they apparently had no more material evidence to support their claims than they did when they first contacted defendant in February 2005.....Whatever plaintiffs' reasons for the manner in which they have prosecuted this case, it does not appear to be justified as a reasonable exploration of the boundaries of copyright law....."
-Hon. Donald C. Ashmanskas

"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer."
-Hon. Lee R. West

"Plaintiff ... must present at least some facts to show the plausibility of their allegations of copyright infringement.... However, other than the bare conclusory statement that on "information and belief" Defendant has downloaded, distributed and/or made available for distribution to the public copyrighted works, Plaintiffs have presented no facts that would indicate that this allegation is anything more than speculation. The complaint is simply a boilerplate listing of the elements of copyright infringement without any facts pertaining specifically to the instant Defendant. The Court therefore finds that the complaint fails to sufficiently state a claim upon which relief can be granted...."
-Hon. Rudi M. Brewster

When the RIAA first chose to go down its legal path, many people simply assumed that judges would roll over and accept whatever "evidence" the RIAA came up with -- no matter how flimsy. The fact that judges are pushing back and questioning many of the RIAA's claims is good to see. If the RIAA has real evidence against people, that's one thing. However, so many of these cases are filed with incorrect or incomplete evidence, and the people accused are pushed very hard to simply settle rather than fight. It's good to see judges demanding actual evidence be presented.

Filed Under: copyright, evidence, judges, riaa
Companies: riaa