South Dakota Court Says Government Doesn't Need To Pay For Home Cops Destroyed To Find A Fugitive Who Wasn't There

from the I-guess-this-is-on-you,-innocent-homeowner dept

Destroying houses appears to be a cop hobby. Somehow searching for suspects involves punching larger-than-man-size holes in walls, shattering every pane of glass that separates cops from perps, and forcibly removing every door that would otherwise open as designed if officers attempted to use the handles.

Maybe some of this is justified if an armed and dangerous suspect is barricaded inside. But law enforcement agencies have made citizens suspected of nothing homeless while attempting to extricate shoplifting suspects, homeless people, and a man armed with nothing more than an ice cream bar. One woman's house was rendered unlivable after it was the centerpiece in a 10-hour standoff between local cops and the only resident located in the house: the family dog. And a house that contained no one was destroyed after its empty interior thwarted cops' efforts to apprehend a nonexistent suspect for more than 19 hours.

Trying to get anyone other than innocent homeowners to pay for this damage is almost impossible. Almost every court has considered this the cost of doing government business -- something taxpayers are always asked to cover. If officers have a law enforcement reason to raze houses, the cost must be borne by those unhoused.

Another case involving the destruction of a house to capture a suspect who wasn't even on the premises has made its way into the court system. And it has (mostly) dead-ended there, thanks to a recent decision by the South Dakota Supreme Court.

In this case, the Hamlin County Sheriff's Department was searching for Gary Hamen, who had an outstanding arrest warrant for felony burglary and violation of a protective order. Gary -- who had threatened to shoot himself and anyone else he came in contact with -- called his father, Gareth, asking for a vehicle to drive to "Canada or Mexico." At that point, he was in a nearby trailer home owned by Gareth, located about 600 feet away from Gareth's trailer.

Officers listened in on this phone call and deputies saw Gary exit the trailer and then walk back inside. The Sheriff's Department requested the assistance of the Watertown PD and secured a drone to fly over the trailer in an attempt to spot Gary or see any exit routes he might take.

A SWAT team assembled and set up a perimeter around the trailer. But this effort appears to have been mostly pointless. From the decision [PDF]:

While the SWAT team attempted to contact Gary, officers received a report that a local resident had observed Gary running towards Castlewood. The resident reported that Gary came out of a tree line near a river and sewage pond, but he had run back into the trees. Sergeant Ellis and the SWAT team tried to locate Gary in this area and encountered another witness who also believed he had seen Gary. An officer inside the armored vehicle called Gary’s cellphone. Gary answered the phone call and claimed he was almost to Minnesota. He sounded out of breath, like he was running.

Law enforcement also spoke to Gary's brother-in-law, who confirmed he had seen Gary the previous night. During this conversation, officers received more information suggesting Gary was no longer in the trailer currently surrounded by a SWAT team.

Not too far away, even more radio traffic suggested entering the trailer wasn't going to result in the discovery of the fugitive.

Meanwhile, Troy Jurrens, who ran a business from his home nearby, was listening to the transmissions among law enforcement on a police scanner as they attempted to locate Gary. He stated: “someone announced on the radio that they were ‘going back to the trailer,’” to which another voice responded, “he’s not in the trailer.” Troy claimed, “The first voice answered back saying they were going back anyway.”

Deputies told Gareth they were going to try to enter the trailer. They did not mention they were planning to destroy the trailer to do this. They also did not ask for consent to enter the trailer, which was the property of Gareth Hamen. Cop-on-house violence ensued.

Not long after, the Sheriff authorized SWAT and the SRT to breach doors and windows on the Hamens’ mobile home. According to Wishard’s affidavit, the “tactical procedure [to secure the mobile home] is to create communication portholes in attempts to call out any subject or subjects that may be hiding inside.” If unsuccessful, gas munitions are used to flush out anyone inside. To create the communication portholes for the Hamens’ trailer, an armored vehicle pulled away the front stairs and deck, which were not attached to the mobile home or secured in the ground, and pushed in the front door with a ram. The second armored vehicle opened three portholes on the opposite side of the mobile home by breaking through windows and a sliding patio door, causing significant damage to the walls and the septic system.

And then:

Shortly after this procedure and before officers entered the mobile home, Gary was seen walking in the river near the Hamens’ residence. Law enforcement apprehended him at approximately 6:00 p.m.

Gareth Hamen sued, seeking compensation for his destroyed property. But there's nothing in the law that says the government needs to pay for property it destroys -- at least not in this fashion. While state law does allow property owners to seek compensation under the state constitution (in order to "ensure that individuals are not unfairly burdened by disproportionately bearing the costs of projects intended to benefit the public generally"), that clause doesn't apply to cops destroying a house to find someone who wasn't even in it. And it's that way because this court has always said that's the way it is.

[O]ur prior decisions have consistently applied the public use language in article VI, § 13 to both the takings and damages clauses, while rejecting a right to compensation under article VI, § 13 when the action involved the state’s police power.

That eliminates one of the allegations. But there's still qualified immunity to consider. Unfortunately, the state Supreme Court says only one of those two allegations will survive.

There were two egregious Constitutional violations: the warrantless entry and the excessive destruction of personal property. Guess which one gets to go forward.

We conclude that, at a minimum, the Sheriff’s warrantless entry into the mobile home required an objectively reasonable belief that Gary was living in and present in the home at the time of entry.

[...]

Given that law enforcement’s last contact with Gary suggested he was no longer in the home, coupled with the fact that law enforcement had surrounded the mobile home for several hours without incident or any materialized threat from Gary, we cannot determine as a matter of law that exigent circumstances existed at the time the Sheriff decided to enter the mobile home.

Since there's plenty of information on the record that suggests at least some officers involved had reason to believe Gary wasn't in the home, there could not possibly be exigent circumstances to enter the home without a warrant to locate someone arrested a couple of hours later outside of the home. This goes back to the lower court for more development of the record.

Unfortunately, the court somehow doesn't consider the damage caused during the search to be worthy of further examination. The officers are granted qualified immunity for the excessive force, even though the court says the entry itself may have been unconstitutional. Walking through a front door without a warrant is no good. Forcibly removing the door (along with windows, walls, part of the septic system, etc.) is just fine because no "reasonable officer" would have been aware that destroying a house to facilitate an illegal search was unconstitutional.

Regardless of whether the Sheriff used excessive force, the Hamens cannot prevail because they cannot show that the Sheriff’s use of force, even if it was excessive, violated a “clearly established” right.

The dissent says this makes no sense. If the entry was unlawful, everything that connected to that entry is similarly unlawful.

Regarding the § 1983 excessive force claim, as a starting premise, if the court determines on remand that the Sheriff’s entry into the mobile home was unlawful, then the nature and extent of force used is immaterial. In such case, the Sheriff is liable to the Hamens’ for the damage caused by the entry.

Furthermore, even if the entry is ultimately proven lawful, the damage caused was excessive, given the facts of the case.

Viewing the underlying facts in a light most favorable to the Hamens, it is questionable whether the use of “communication portals” of the sort made here were required given the small size of the trailer, particularly when considering that, up to the point of their decision to enter the trailer, law enforcement had been using a loudspeaker to attempt to communicate with Gary. Viewed in this light, the resulting damage to the trailer was intolerable in its intensity and unnecessary to execute the burglary warrant at issue.

That's how it stands in South Dakota: law enforcement can destroy a house to engage in an illegal search without having to worry about paying for the damage. A single claim survives this trip through the court system, which likely isn't going to produce a decision or settlement large enough to replace the home. And even if it does, it will come years after the damage was done.

Filed Under: gary mhamen, hamlin county, houses, police, south dakota, swat team, wrong suspect

Neighbor Sues For $2.5 Million After Renovation Looks Too Much Like Their Own House

from the copyright-madness dept

Copyright on home design has always been a really sketchy idea. Earlier this year, we wrote about a disturbing trend of housing copyright trolls and have had some other similar stories over time. For reasons that are beyond me, the Berne Convention requires copyright on architecture, and that creates silly situations, such as the one in Australia, where a homeowner was forced to modify their home due to "infringement."

And this nonsense has spread to Canada. The Toronto Star has the story of a couple, Jason and Jodi Chapnik, living in Forest Hill, Toronto (one of the "most affluent neighborhoods" in Toronto), who sued their neighbors for $2.5 million for the horrific faux pas of renovating their house to look too much like the Chapniks.

Jason and Jodi Chapnik, who own the home on Strathearn Rd., near Bathurst and Eglinton Sts., alleged that a house on nearby Vesta Dr. was newly renovated to look “strikingly similar” to theirs — including using the same shade of blue and matching grey stonework.

The Chapniks filed a lawsuit against neighbour Barbara Ann Kirshenblatt, her builder husband and architect brother-in-law for copyright infringement in federal court, as well as the real estate agent who profited from the house’s recent sale and the anonymous contractors who worked on the house. They were seeking $1.5 million in damages, $20,000 in statutory copyright damages, $1 million in punitive damages, and a mandatory injunction on the defendant to change the design of the home.

Of all the things in the world to be concerned about, how totally screwed up must your priorities be to freak out that someone around the corner has a house that looks kinda similar? The story notes that the case went on for 3 years, before recently being settled. As Kirshenblatt noted in filings in the case, nearly all of the so-called copied features appear to be pretty standard features you'd see in nearly any Tudor-style house -- and they pointed to other properties (including a Scottish castle) with similar features that they based their house on.

The whole thing is a reminder, yet again, of the ridiculousness of locking up ideas like home design under copyright. No one is inspired to design a house because of the copyright you get. There is no necessary incentive there. People design homes not for the copyright, but for the home. What a complete waste of time.

Filed Under: architecture, copyright, houses, jason chapnik, jodi chapnik, toronto, tudor homes

Copyright Trolls... But For Houses

from the knock-knock dept

The copyright trolling business is getting weirder and weirder. Brad Heath directs our attention to a ruling in a bizarre case in the 7th circuit appeals court, in which we discover the existence of housing copyright trolls, who drive around looking for houses just a tad too similar to their copyright-covered designs. Really.

Let's start with a little history, though. We discussed some of this a month ago, in our post about how copyright was getting in the way of a guy who wanted to rebuild his home that had burnt down, and the developer arguing that this was infringement (that situation was eventually settled with the developer backing down). As we noted in that story, back in 1990, Congress passed the Architectural Works Copyright Protection Act of 1990, or AWCPA. This was done to (sort of) bring the US into compliance with the (silly) Berne Convention on copyrights. While the 1976 Copyright Act had (for the first time) included protections for an architect's plans and drawings, this was rather limited in practice. AWCPA greatly expanded this to cover (among other things) the design of buildings. Pretty much since it passed, people have questioned why this was even needed. The US had a long history of extremely creative and innovative architecture long before 1990 (indeed, long before 1976). There was no indication that there was a need for copyright protection here. But copyright protection is what we got.

A few years back, there was a nice detailed analysis of AWCPA, which noted that while many had expected cases to focus on big standout pieces of architecture, instead, many of the cases involved things like competing model home builders. And, for the most part, the courts had (thankfully!) interpreted the law pretty narrowly, noting that because much of a house is utilitarian, rather than decorative, for houses to violate AWCPA, they need to be basically identical and there needs to be some serious evidence to support copying.

Apparently, this did not deter the plaintiffs in the case we're talking about today. Patrick Carmichael and Myles Sherman purchased a long-standing home developer, Design Basics, in 2009, with the express plans of using AWCPA to go after others with similar houses. And they did exactly that:

In 2009, Patrick Carmichael and Myles Sherman purchased Design Basics as an investment opportunity. Carmichael acknowledged in his deposition that “potential copyright infringement cases influence[d his] decision to become an owner of Design Basics.” He testified that proceeds from litigation have become a principal revenue stream for Design Basics.

A search of the Public Access to Court Electronic Records (PACER) system reveals that Design Basics has been party to over 100 federal lawsuits, the vast majority of which have been filed since the 2009 change in ownership. Nearly all involve copyright claims asserted by Design Basics.

And then we have the kicker:

Design Basics offers its employees incentives to scout out potential copyright infringement cases, paying its employees a finder’s fee in the form of a percentage of the net recovery relating to any home plans that they located.

There you have it. Copyright trolling... with houses. They would literally tell employees to drive around looking for houses they could sue over, promising a cut of any proceeds.

Indeed, the 7th Circuit seems well aware of the comparison:

Design Basics’ business model of trawling the Internet for intellectual property treasures is not unique. In recent years, opportunistic holders of copyrights, patents, and other intellectual property have developed unsavory reputations for “trolling,” bringing strategic infringement claims of dubious merit in the hope of arranging prompt settlements with defendants who would prefer to pay modest or nuisance settlements rather than be tied up in expensive litigation. Like the proverbial troll under the bridge, these firms try to extract rents from market participants who must choose between the cost of settlement and the costs and risks of litigation.

Thankfully, the judges also recognize why this is a problem. Indeed, they even cite Matthew Sag's excellent research on copyright trolling and (later) they mention the great This American Life episode on patent trolls:

This business strategy is far removed from the goals of the Constitution’s intellectual property clause to “promote the Progress of Science and useful Arts.” U.S. Const. art. I, § 8, cl. 8. Intellectual property trolls have attracted much attention and derision in scholarly literature and the mainstream media. See, e.g., Matthew Sag, Copyright Trolling, An Empirical Study, 100 Iowa L. Rev. 1105, 1108 (2015) (“The essence of trolling is that the plaintiff is more focused on the business of litigation than on selling a product or service or licensing their IP to third parties to sell a product or a service. The paradigmatic troll plays a numbers game in which it targets hundreds or thousands of defendants, seeking quick settlements priced just low enough that it is less expensive for the defendant to pay the troll rather than defend the claim.”);

In the particular case at hand, Design Basics found houses by a competing developer, Lexington, that they argued were too similar. They presented little evidence as to why they were similar, while Lexington made it pretty clear they'd never seen the plans of the Design Basics house. Also, Design Basics waited until literally the day before the statute of limitations would hit to file suit. The lower court ruled in favor of Lexington and against Design Basics, and the appeals court rightfully upholds this ruling.

The court notes that while there are copyright cases where "substantial similarity" is enough to show infringement, the bar is higher with houses.

The market for affordable home designs is crowded because opportunities for originality are tightly constrained by functional requirements, consumer demands, and the vast body of similar designs already available. In this field, the substantial similarity requirement is particularly hard to satisfy.

And, indeed, the court also notes (quoting itself from an earlier case) that "two works may be strikingly similar—may in fact be identical—not because one is copied from the other but because both are copies of the same thing in the public domain. … A similarity may be striking without being suspicious." Along those lines, the court references one of my favorite (but tragically rarely used) concepts: scènes à faire. That is, the idea that certain things can only be done in a few specific ways, and it's not copying that multiple people do them the same way. This is normally applied to things like plot points in certain genres, but here, the court notes it can apply to architecture as well:

Zalewski recognized that there are scènes à faire in architecture just as in literature or music. Colonial‐style homes—or, as relevant here, a wider variety of suburban homes—share many design elements and characteristics to which no individual designer can lay claim. Design Basics’ designs also share many attributes driven by “consumer expectations and standard house design generally,” and designers can “get no credit for putting a closet in every bedroom, a fireplace in the middle of an exterior wall, [or] kitchen counters against the kitchen walls.”

As the court further notes, building homes that are seen as conventional limits any copyright claim, and keeps it "thin" applying merely to the truly different and creative elements.

Design Basics’ infringement claim fails for essentially the same reason that the plaintiff’s claim failed in Zalewski. Lexington’s accused plans resemble Design Basics’ plans, but only because both sets resemble common home designs one might observe throughout the suburbs of Milwaukee, Chicago, Indianapolis, or many other communities. There are only so many ways to arrange a few bedrooms, a kitchen, some common areas, and an attached garage, so “not every nook and cranny of an architectural floor plan enjoys copyright protection.”

And further, the court notes that since Design Basics offers thousands of different home designs, ruling otherwise might effectively allow the company to troll almost every suburban home:

Design Basics advertises over 2700 home plans at www.designbasics.com. We wonder whether there is any blueprint for a single‐family home anywhere in the country that Design Basics could not match to one of its own designs by applying the loose standard of similarity it relies upon here. An infringement doctrine that would enable an aggressive designer to sue all of its competitors and bring those claims before a jury would turn the law of copyright on its head. Far from promoting the “Progress of Science and useful Arts,” U.S. Const. art. I, § 8, cl. 8, such a doctrine would chill the market.

The court then essentially mocks the fact that Design Basics relies on its own draftsman to make the expert case for substantial similarity, but that he fails to say much more than that:

Design Basics relied on a conclusory six‐page declaration by its draftsman, Carl Cuozzo, that does not reflect any effort at side‐by‐side comparison of the plans. Cuozzo said only generally that the accused plans are “substantially similar to Plaintiffs’ Copyrighted Works in too many ways to have been the product of independent creation” and that it was “obvious” to him that the accused plans were copies of Design Basics’ plans.

Furthermore, the ruling notes that Cuozzo has delivered similarly weak entries (the court calls them "remarkably similar opinions") in a whole bunch of Design Basics other cases. The defendant, Lexington, on the other hand, brought in an actual expert who gave a detailed report detailing the many differences in the designs. In response, the court points out: "Design Basics offered essentially nothing." Ouch.

Separately, the court highlights the near total lack of evidence that Lexington even had access to Design Basic's plans. It probably didn't help Design Basic's case that it made arguments as easily disputed as the following:

Patrick Carmichael’s declaration that Design Basics “regularly and systematically” mailed publications to members of the Brown County Homebuilders Association in Wisconsin. Lexington was a member of that association from 2004 until around 2012 or 2013. But Design Basics’ own records show that it last shipped an order to the association in 1994— a decade before Lexington joined the association and years before three of Design Basics’ plans at issue were even created. The association’s executive officer swore in an affidavit that (1) the association does not disseminate plans or plan books to its members; and (2) if the association had received any plan materials from Design Basics, it would have discarded those materials at the time of receipt.

And thus, Design Basic's big housing copyright trolling scheme gets slapped down. Whether or not this will end the company's litigation strategy elsewhere remains to be seen, but it is quite incredible how widely copyright trolling is happening. At some point, people are going to need to wake up to the fact that laws that can be abused this way repeatedly with threats of lawsuits (and some actual lawsuits) represent a real problem.

Filed Under: awcpa, copyright, copyright trolls, houses
Companies: design basics, lexington homes

Comparing Cell Phones To Houses Not Exactly Deterring Use Of Generalized Warrants, Court Finds

from the the-analogy-that-almost-worked dept

Sometimes the courts realize today's smartphones can't be reasonably compared to anything else people have historically carried with them, like wallets, address books and the contents of their pockets. In the Supreme Court's Riley decision, it noted that searching a smartphone is roughly analogous to searching someone's house -- people's entire lives are contained in these devices. Hence, the warrant requirement, which turns phones from a "container" to the most sacrosanct domain under the Fourth Amendment.

Sometimes, though, the house analogy works against defendants and their smartphones, as in this recent case highlighted at FourthAmendment.com. A warrant application to search a suspect's cell phone was broadly (and badly) written, asking for basically everything the device could conceivably contain.

In his affidavit, which was attached to his application for the warrant, Walker set out the substance of the investigative interviews and concluded by stating: "Based on the above facts . . . I have probable cause to believe [the defendant's] cell phone contains valuable information that will link the victim/suspect ([the defendant]) and suspect/victim (Lerouge) to the crime." Walker received and executed a warrant to search the defendant's iPhone for the following:

"Subscriber's name and telephone number, contact list, address book, calendar, date book entries, group list, speed dial list, phone configuration information and settings, incoming and outgoing draft sent, deleted text messages, saved, opened, unopened draft sent and deleted electronic mail messages, mobile instant message chat logs and contact information mobile Internet browser and saved and deleted photographs on an Apple iPhone, silver and black, green soft rubber case. Additionally, information from the networks and carriers such as subscribers information, call history information, call history containing use times and numbers dialed, called, received and missed."

The suspect sought to suppress the photographs found on his iPhone -- ones in which he was holding a gun and wearing the same jacket as the person sought in connection with a shooting.

The court did have problems with the warrant as written.

The warrant is awkwardly written, conflating at least in part the items to be searched for and the places to be searched. We agree with the dissent that as written the warrant and the warrant application are overly broad.

But it found that considering what would need to be viewed to determine whether or not it was evidence of criminal activity, the search did not exceed the limits of the warrant.

[C]onsidered in conjunction with the affidavit incorporated therein, a commonsense reading shows that the warrant authorized a search of various types of files for evidence of communications that would link the defendant and another person to the shooting.

In its decision, the court applied the house analogy (tipping a hat towards the Riley decision) and found the broad range of content searched to be roughly equivalent to the search of a residence with a warrant.

In the physical world, police need not particularize a warrant application to search a property beyond providing a specific address, in part because it would be unrealistic to expect them to be equipped, beforehand, to identify which specific room, closet, drawer, or container within a home will contain the objects of their search.

So, when searching the phone, the government may treat it like a house, providing little more than a short physical description of the item, along with where it thinks evidence may be found. The government, however, should not extend this analogy further than is necessary. It cannot remain vague on the specifics of what it's searching for, nor can it avail itself to the entire contents of the device without reason.

Nevertheless, much like a home, such devices can still appropriately be searched when there is probable cause to believe they contain particularized evidence. See McDermott, 448 Mass. at 770-772. However, given the properties that render an iPhone distinct from the closed containers regularly seen in the physical world, a search of its many files must be done with special care and satisfy a more narrow and demanding standard.

At issue here were the incriminating photographs, which the defendant sought to suppress. He argued the police only had probable cause to search his text messages and phone calls. The court disagrees.

Communications can come in many forms including photographic, which the defendant freely admits. So long as such evidence may reasonably be found in the file containing the defendant's photographs, that file may be searched.

[...]

Once the photographs in question were viewed, their evidentiary relevance linking the defendant (holding a gun and wearing a jacket similar to the one worn by the shooter) to the specific crimes under investigation was apparent.

"Your phone = your house" does the defendant no good here, primarily because warrants can be used to access both with little fear of constitutional violations. Even the comprehensive nature of the warrant falls within the confines of the Constitution, as the swearing officer had shown that evidence linking the suspect to the crime would likely be found on his phone.

The dissenting opinion, however, disagrees that the photographs entered as evidence were actually evidence of anything more than the suspect's ownership of a gun and a jacket.

I disagree with the court's resolution of the issues presented here. In my view, the search of the photograph files on the defendant's Apple iPhone "smart" cellular telephone was not supported by probable cause, and the warrant authorizing that search was not sufficiently particular. Furthermore, even had there been probable cause to support a search of the photograph files, the photographs seized by the police appear to have been outside the permissible scope of the warrant.

The photographs were supposedly "threats" sent to a recipient by text message. The dissent argues that applying the phone = house analogy may prevent warrantless searches, but it does very little to deter police from performing invasive searches of suspects' devices.

The court incorrectly holds, however, that there was probable cause to search the entire set of photograph files on the defendant's iPhone. In my view, there was not a substantial basis for concluding that the entire set of the defendant's photograph files, rather than just the subset of photograph files attached to the defendant's text and multimedia messages, was related to the criminal activity under investigation.

The dissent warns that the over-reliance on analogies will likely result in more abuse of non-specific warrants as devices carried by a majority of the population continue to hold more and more of their "private" lives.

In an increasingly digital world, we continue to lean heavily on analogies between digital media and physical spaces and objects, such as that between a computer and a closed container. In reality, however, searches of physical spaces for physical objects are akin to searches of digital media for digital information much in the way that "a ride on horseback" resembles "a flight to the moon."

While narrowing the scope of purely digital searches may be difficult, it is not impossible. The purpose of the court is not to make things easier for law enforcement, but rather demand more from them as the stakes rise. To call a phone a house may keep cops from accessing contents without a warrant, but it does little to prevent them from accessing everything once a warrant is in hand.

Here, the state sought to apply the "plain view" standard to its access of photos not attached to text messages -- positing that the incriminating pictures would inevitably have been seen by investigators during the execution of the search warrant. But, as the dissent points out, applying a warrant exception to a not-quite-fitting analogy only encourages law enforcement to pursue generalized searches that encompass the entire contents of suspects' smartphones, rather than limit themselves to where evidence is most likely to be found.

In Preventive Med. Assocs., supra at 832, this court elected to "leave for another day the question whether use of the plain view doctrine as a justification for admission of evidence should be precluded or at least narrowed in the context of searches for electronic records." While not today, the day when the court will be called upon to determine more precisely when and how the plain view exception applies to digital searches is likely close at hand.

The inevitable has been postponed. This court -- and many others around the country -- will have to tangle with this issue and decide for themselves whether they'd rather apply analogies or remedies. Only one will prevent digital devices from being treated with the disregard as the British treated colonists' homes during the execution of general warrants.

Filed Under: 4th amendment, houses, mobile phones, privacy, warrants

Australian Court Orders Homeowners To Physically Alter Exterior Of 'Infringing' House

from the putting-the-(c)-back-in-'construction' dept

YOU WOULDN'T DOWNLOAD A HOUSE.

The defendants shall promptly take the following action in respect of the following external features of the third defendants’ house at lot 23 The Sands Estate Port Douglas:

(a) Feature: Dormer roofs

Action: Remove the dormer roofs.

(b) Feature: Arched and circular windows at the front of the house and such other exterior arched and circular windows as are ordinarily visible from public paths or streets.

Action: Remove and replace with rectangular or square windows and any external remnant space, appearance or outline of the arched and circular window shapes be filled and concealed by rendering.

(c) Feature: Stone edge trim corners at the front of the house and such other stone edge trim corners as are ordinarily visible from public paths or streets.

Action: Grind, cut away or remove the areas of stone edge trim to the extent necessary to render those areas flush with the walls and fill and conceal by render any remnant appearance or outline of the stone edge trim.

This is the opening of a recent decision (sent in by a unnamed Techdirt reader) by the Queensland (AUS) Supreme Court -- the end result of a copyright infringement lawsuit alleging that two builders (James Dormer and Michael Clark) worked in concert with a married couple to construct a copycat house. All of this is absolutely true, including the court's demand that dormer roofs (a fairly common architectural feature, actually) be removed and arched windows be converted to rectangles or squares to turn the house from an infringing edifice into something only faintly echoing the original source.

The events behind this outcome are almost comical. Plaintiff Stephen Coles purchased a house designed by George Skyring because he liked its unique features. Defendants John and Edith Breden also liked the house's unique features, but their bid for the house fell short.

So, the Bredens contacted Port Douglas Builders (who built the home Coles purchased) to construct them a replica version, utilizing the Skyring blueprints. Coles somehow heard about their plan to rob his house of its uniqueness and acquired the copyrights to the design by assignment from Skyring. He told the builders about his acquisition, hoping that this would alter their plans (to use unaltered plans). It had no effect. Construction continued. Litigation ensued.

The court doesn't look too kindly on the defendants' actions (as can readily be inferred from the terms of the judgment). Coles made it clear he didn't want to look out his window and basically see "his" house looking back at him. (The Bredens purchased a lot three houses away from Coles'.) He spoke to the construction company directly to express his concerns and -- after acquiring the copyright for the plans -- asked that the builders provide him with copies of their plans for his approval before construction. PDB's reps -- James Dormer and Michael Clark -- agreed to do so… but never followed through.

Mr Clark testified he received a text from Mr Coles that indicated Mr Coles was away and requested the drawings to be scanned and emailed to Mr Coles. Mr Clark testified they decided to not send such a copy. He testified, most unconvincingly, that their preference was to see Mr Coles face to face and that he anticipated Mr Coles would be in touch when he returned or once the plans were submitted for body corporate approval if he did not like them. I infer the unattractive reality is that knowing they had assured Mr Coles they would provide him with their proposed plans they decided to go back on their word, taking a calculated commercial decision to press on without further reference to Mr Coles.

When Mr. Coles returned from vacation, he saw a concrete slab with fittings in place that looked remarkably like the layout for his house. He again contacted PDB and again was ignored. By the time the lawsuit was filed, the Bredens' new home -- Coles House Mk II -- was nearly complete.

Because the court finds the two houses -- and their underlying plans -- to be substantially similar, James Coles wins the case. So, Coles will go back to the unique house he purchased and the Bredens will go back to their version of the same house, which is due to be remixed into un-uniqueness in the near future.

The discussion of the final judgment is also worth reading. The court finds it difficult to apply an injunction considering the replica house has already been constructed. Short of levelling it and forcing the Bredens to start over (which would inflict damages far in excess of what Coles has actually suffered), the court states that altering certain distinctive features is punishment enough and achieves Coles' original objective: to have a "unique" house. The court also refuses to make the Bredens and the construction company turn over every copy of the original plans, seeing as they might need to be referenced to ensure the ordered alterations can be done without disturbing underlying construction elements.

From the decision, it seems the Bredens themselves had little culpability. How much of Coles' concerns were passed on to the couple isn't detailed and they were not asked to testify. This puts them in somewhat of a bad spot if they were unaware. Obviously, the construction company did everything it could to nail down a second sale of the same house (more or less). Passing up the chance to earn another $1,000,000 is hard to do, even when the threat of litigation lingers in the air.

Australia isn't unique in affording copyright protection to architectural plans and design elements. But it is unusual to see a case being brought by a homeowner rather than a designer and even rarer still to see a copyright judgment result in physical alterations to the exterior features of a constructed residence.

Filed Under: architecture, australia, copyright, houses

Judge Tackles Police Use Of Radar To Scan Home Interiors And Comes Up With No Real Answers

from the it-comes-down-to-details-and-there-just-aren't-enough-of-those dept

Being in law enforcement often means brushing right up against the edges of the Fourth Amendment. It's your job to catch criminals, and most criminals have zero interest in being caught. The resulting surface tension is easily broken. Some breaks are inadvertent. Others are much more deliberate. But in this case, the circumstances are ambiguous at best.

A recent case presided over by Judge Neil Gorsuch of the Tenth Circuit Court deals with these stretched edges. [via Orin Kerr] Convicted felon Steven Denson stopped meeting with his probation officer and holed up in his house, where he was subsequently arrested for parole violations and the illegal possession of firearms. (The guns hadn't been used in any criminal activity, but Denson's previous felony conviction made it illegal for him to possess them.)

We know Denson was in his house because the end result bears that out. Leading up to the entrance of his residence, the police gathered other information indicative of Denson's whereabouts: utilities registered in his name, his lack of employment and electricity usage that surpassed that of an empty house.

Denson challenged the arrest and the post-arrest seizure of weapons on the basis of a single act performed by the officers prior to entry: the use of Doppler radar to determine whether someone was actually on the premises.

While it's never specifically stated as such, the gist appears to be that the Doppler radar was considered a warrantless search by Denson -- something that should negate the actions of the officers following the radar's use. The police had no warrant to search the premises, only a warrant to effect an arrest. While he was being arrested, police swept his home (without a warrant), uncovering the illegal weapons. Judge Gorsuch -- after some discussion on whether the police had enough "probable cause" to believe Denson was at home -- tackles the issue of the radar itself, something that presents Fourth Amendment concerns. [pdf link]

Separately and as we alluded to earlier, the government brought with it a Doppler radar device capable of detecting from outside the home the presence of “human breathing and movement within.” All this packed into a hand-held unit “about 10 inches by 4 inches wide, 10 inches long.” The government admits that it used the radar before entering — and that the device registered someone’s presence inside. It’s obvious to us and everyone else in this case that the government’s warrantless use of such a powerful tool to search inside homes poses grave Fourth Amendment questions. See, e.g., Kyllo v. United States, 533 U.S. 27, 33-35 (2001) (holding that using warrantless thermal imaging to show activity inside a home violated the Fourth Amendment) New technologies bring with them not only new opportunities for law enforcement to catch criminals but also new risks for abuse and new ways to invade constitutional rights.

Denson argues the police had no reason to enter his home, much less search it. The only reason they did was because the Doppler radar indicated someone was in the house. He also argues that the use of the radar should have negated the officers' stated need to perform a sweep of the house for other individuals -- this protective sweep being the instrument of discovery for Denson's weapons stash.

The single mention of a precedential case (Kyllo v. United States) is inserted near the discussion about "grave Fourth Amendment questions," and never mentioned again. It would appear that the Doppler radar was a warrantless search of Denson's premises, at least under this Supreme Court ruling, but Gorsuch ignores this and focuses on the probable cause factors justfying entry of the home in the first place.

Gorsuch examines the protective sweep more closely, and finds it wanting, considering the pre-entry radar deployment. On one hand, Denson's history of violent crime and known violent criminal associates would have justified a "protective sweep" during his arrest. But, on the other hand, the cops already knew no one else was on the premises.

But what — again — about the radar? Before the officers entered, their radar search suggested the presence of one person inside. And given that, one might well wonder: did the officers’ questionable search outside the home paradoxically negate their otherwise solid case for a search inside the home? Surely, after all, the government isn’t entitled to perform searches to guard against phantom risks, ones they know don’t exist. If radar (or any other investigative technique for that matter) dispels the possibility of a hidden danger, a search predicated on that possibility becomes constitutionally unreasonable.

The government cannot take the benefit of a questionable radar search without having to live with its costs. Neither does the government seek to justify its protective sweep in this case on the presence of any threat (say, traps or bombs) that its radar wasn’t designed to detect. The government’s only professed fear was the presence of persons, something its radar was admittedly designed to detect.

Gorsuch could have pushed a bit more on this point, but unfortunately, defers to the unknown.

Even so, without more facts about the radar, its capacities and how it was used, we just can’t say it “dispel[led]” the officers’ “reasonable suspicion of danger” in this case. We know the radar suggested the presence of someone inside. But how far inside the structure could it see? Could the device search the whole house and allow the officers to be sure that they had located every person present? Could it distinguish between one person and several? We just don’t know. Our record lacks any answers. As a result, we simply aren’t in a position to say that the radar search negated the officers’ otherwise specific and articulable reasons to worry about a compatriot lurking inside.

And that's where it ends. Gorsuch notes that the use of these devices means this sort of thing will be discussed again. As for the police department, it's safe to assume it isn't interested in divulging further details about its technology, even if what it withholds may jeopardize the evidence it obtained.

But behind it all, there were two searches performed -- both without a warrant. First, there was the Doppler "search," which determined someone was home. Then there was the search performed under the guise of a "protective sweep." The guns were uncovered in a closet, something that would be checked during a sweep, but the question falls back to whether the sweep itself was justified. Gorsuch says basically that he just doesn't know and the question remains open until the situation presents itself again.

The troubling aspects about the Doppler radar align with concerns about Stingray devices. Police have used IMSI catchers to track down suspects without having to deal with search warrants -- something radar can do as well. In both cases, details about capabilities are left to the courts' imaginations. No one in law enforcement wants to talk about the level of intrusion or the inherent limits of the tech and, for the most part, their silence has been unchallenged.

Filed Under: 4th amendment, houses, policy, privacy, scanning, steven denson

DailyDirt: Small Houses For Fun & Profit

from the urls-we-dig-up dept

Another era of building McMansions probably won't be coming again anytime soon. Big houses built quickly and somewhat cheaply aren't in much demand nowadays. But there are a few designers who are working on really small houses (that could almost fit in a McMansion closet). Here are just a few examples of some extremely tiny living spaces that look nicer than you might expect.

• If you think you can live in a ~100 square foot house, you can build your own tiny little house -- and some nice floorplans are available for about $1 per square foot. These houses may not be as modular as a shipping container house, but they look more like regular houses -- slightly smaller. [url]
• Frank Lloyd Wright once designed a very, very small house... and he provided the design for free to a kid who asked nicely for a doghouse to go along with a summerhome that Wright also designed. The original doghouse was destroyed, but the doghouse has been re-created for a documentary. [url]
• A popup camper that can fit in a shopping cart doesn't look very comfortable, but it's a lot better than a cardboard box. The artist that designed this humble abode was planning for a "worst case" scenario of living on the streets -- during a zombie apocalypse? [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post.

Filed Under: architecture, camping, doghouse, frank lloyd wright, houses, mcmansions

Home Buyers Only Finding Out About Resale Fees When It's Too Late

from the sneaky,-sneaky dept

We've been covering the growing practice of adding a "resale fee" to homes, that give developers a copyright-like extended control over a piece of your house long after the house has been sold. The idea is that they can get 1% of any future sale -- which of course makes the house worth less to both buyers and sellers, as they know right away, that 1% of the sale (and any future sale) goes elsewhere. The main company behind this concept is called Freehold Capital Partners, which is really trying to take those fees and securitize them, so the developers actually get a lump sum upfront (making it attractive to them) and you get random investors collecting whatever fees they can get.

The NY Times also covered this story recently, and added the fact that these resale fees are often totally hidden from buyers, such that they either don't find out about them at all until they later try to sell their homes, or mixed in with the closing process, by which point they've more or less committed to buying the property. Meanwhile, the story also notes that HUD has stated that these deals violate regulations, and it won't finance mortgages that include them. A growing number of states are outlawing such deals, and the federal government is looking into them as well -- meaning that the investors who are buying into these sorts of things may discover that their investment is worthless. You would think after the last mess created by trying to securitize a part of the residential real estate market and pawning off the risk on less and less sophisticated buyers that people would know to stay away from such things -- top to bottom. However, it seems like some will always try to find ways to game the system.

Filed Under: houses, resale fees
Companies: freehold capital partners

Treating Houses Like Copyright... And Then Securitizing And Selling Off The Revenue From Future Resales

from the ah,-financial-innovation dept

Earlier this year, we wrote about the attempt by some housing developers to demand a cut of every future sale of the homes they built. This was similar to various attempts around the globe to add a resale right for artists, such that they get a cut every time their artwork is resold. It makes no sense for artists (and actually does serious harm to artists), and it makes even less sense for houses. But how did the folks who came up with this plan defend it? By citing copyright law, of course, saying that it was no different than an author or a musician getting royalties from the sales of their works.

Reader Mark points us to another article about this attempt to contractually create a resale right for homes. This article has a lot more details about the plans, put together by an financial firm called Freehold Capital Partners (which the last article called a Texas company, but is now referred to as a New York company -- which is interesting, given that the last article also noted that Texas law probably prohibited this practice). However, this article notes that the whole plan is prefaced not on actually giving the builders a cut of all future sales, but (of course) to securitize and sell off the potential future revenues to investors. Forget securitizing mortgages, now we're talking about securitizing a bizarre contractual resale right that means you have to pay some random investors any time you sell certain houses. Yikes.

Thankfully, plenty of folks are realizing how sketchy this is, and various states have specifically outlawed the practice. The article quotes some developers whining about how much nicer it is to be able to get a big chunk of money from these kinds of deals, but given that the chunk of money comes from a rather questionable process, they shouldn't have relied on it too much in the first place.

Filed Under: copyright, houses, resale rights, securitization
Companies: freehold capital partners

Developers Trying To Treat Houses Like Copyright; Want A Cut Of Every Future Resale

from the bangs-head-against-wall dept

We've been noticing a trend in recent years of companies that sell physical goods trying to figure out ways to have those goods get some of the "advantages" of digital goods. For example, with physical products, once you sell it, in theory, the seller no longer owns a piece of the good. But with digital goods, they still hold the copyright, and often try to limit what you can do with the product even though you thought you "bought" it. So we've been disturbed by the rise of things like artist resale rights, which take away the right of first sale on artwork, and require you to pay the original artist every time you sell the product.

We've pointed out how this really only benefits wealthy artists, while harming up and coming artists -- despite those who support such laws claiming exactly the opposite. Their argument is that if a poor artist sells a piece of artwork on the cheap, and it later appreciates in value, he should get a cut of that increase in value. That argument fundamentally misunderstands economics, however. By adding that, you are effectively taking away the potential benefit to a buyer. You are lowering the possible return, making it less likely for them to invest in the first place. And we already have better mechanisms to help artists capture value if their older (cheaply sold) artwork becomes more valuable: it's called creating and selling newer artwork for much more money.

When Australia moved forward with just such a plan for artist resale rights at the end of last year, we asked mockingly, why not apply the same thing to every product, so that any time you sold it, you had to pay everyone else who owned it. In fact, we noted:

Imagine if that were the case with cars or houses as well? Who would ever think that was reasonable?

Well, apparently some financial firm in Texas think it's reasonable. As a few people have submitted, they're trying to convince developers to set up a system where they get paid every time a house gets sold and resold:

Freehold Capital Partners, a company started in Texas, is selling developers across the country on a plan that would attach a private transfer fee to homes, allowing developers to profit for generations.

The fee, written into neighborhood restrictions, would encumber the property for 99 years and throw 1 percent of the sale price back to the developer -- or his or her estate or another investor -- and Freehold each time the home changes hands.

My apologies for thinking that such a scenario was an "obviously ridiculous" one. Not surprisingly, Freehold is using intellectual property as the basis for its plan:

"Just like authors who write books and musicians who write songs that will be enjoyed for generations to come, those who improve property are also engaged in the creative process, and the economics of the transaction should reflect that reality," a Freehold brochure says.

Thankfully, people are protesting this, noting that it will drive down the price of homes, make it harder to sell them, harm neighborhoods and greatly "muddy" questions of ownership. Of course, all of that applies to copyright as well, but we won't go there just yet.

Filed Under: copyright, houses, real estate, resale