Originally published by Dan M. Clark.
A federal judge in Washington is expected to rule on a request for a TRO from nine state attorneys general, including New York AG Barbara Underwood, who sought in a lawsuit on Monday to permanently stop those files from being shared online.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by J. Ryan Fowler.
In a recent decision from a United States District Court, the trial court had to decide whether the insured was owed statutory interest and attorneys’ fees even though the insured did not properly plead for the interest or fees. In Agredano v. State Farm Lloyds, the insured prevailed on their breach of contract claim.1 After…… Continue Reading
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Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Herrman & Herrman, P.L.L.C..
There are many instances of social media posts being used as evidence in courts in the United States. Several verdicts have been based around photos or text obtained from public Facebook or Instagram posts as well as subpoenaed private data. This is becoming a more common occurrence, prompting many people to become more careful with the information they are willing to share on social media.
While photos and posts can be easily admitted as evidence, the case is not so clear for tweets. Twitter has many accounts that are difficult to verify, including troll accounts, parody accounts, and fake celebrity profiles. Still, there is a precedent that allows tweets to be used as evidence as long as their authenticity can be verified.
It may not seem that snarky or harmful tweets should be considered actual evidence, but the fact is that they can be used against individuals who cause damage. If your tweets are public, you are subject to the same laws that are meant to prevent you from knowingly spreading misleading and potentially damaging information about other people or entities.
People may tweet inflammatory information about a company that hurts their reputation. If it can be proven that tangible damages have occurred as a result of the tweet, this tweet can be used as evidence against the user. However, it must first be confirmed that the user had the intent to damage the company, and this can be a grey area when it comes to tweets. Satire or comedic tweets wouldn’t necessarily be able to be used as evidence.
Tweets can also be admitted as evidence if they promote violence, harassment, or abuse. If a Twitter uses threatens to harm another person, charges can be brought against them and their tweets can be used in court to prove their intentions. Again, this is difficult as Twitter handles don’t always use real names, and the profile may not include any real information about the user.
These harassment cases usually move forward more easily if the target is a famous person or a public figure. Twitter can work with authorities to pinpoint the location of the user and verify the authenticity of the tweets. In one case, a man from Bristol, England was imprisoned after tweeting abusive messages at MP Stella Creasy.
One man’s use of Twitter landed him in the Dallas County jail after being accused of harassing a judge who had previously presided over a criminal case against him.
Babak Taherzadeh claimed in 2016 that he was only exercising free speech when he used 10 separate Twitter accounts to continually verbally attack Judge Brandon Birmingham. Texas authorities, however, saw the case differently after the judge claimed that he feared for the lives and safety of himself and his family. Taherzadeh’s multiple threatening and inflammatory tweets were used as evidence against him in the case.
While there is an ongoing debate about whether this violates the first amendment, the fact remains that tweets can be used build a case against a person, even if they think they are only “trolling.”
The post Twitter in Court appeared first on .
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by 1p21.admin.
There are many kinds of recreational activity providers, many of which
target catering to kid’s parties as a business model. These include
bounce house parks, trampoline parks, exercise and fitness centers, obstacle
courses and Ninja Courses to name a few. Most of these have one thing
in common—you must sign a waiver (release) and indemnity agreement
to participate. If you are underage, then your parent must sign a waiver
(release) and indemnity agreement. While all parents who sign a waiver
and indemnity agreement are potentially giving up their kids’ ability
to effectively seek redress if the facility negligently causes their injury,
divorced parents face an additional risk that could leave them personally
liable for the cost of the judgment and the defense.
What is a Waiver of Liability or Release of Liability?
A
waiver
of liability a/k/a
release
of liability is a written agreement not to hold someone responsible for their negligence.
If properly drafted, Texas allows people to sign a waiver of liability
or release of liability even
before the negligence occurs. If this document is signed by an adult, it is valid
as to the adult. Kids however, enjoy a special privilege under the law.
They have the right to void a contract signed on their behalf that is
not in their best interest. So, when a parent signs a waiver/release,
the child can have it declared void and still sue the negligent tortfeasor
when they are injured. The parent, who has the right to collect the medical
bills, can still be barred from collecting the medical bills up to the
child’s 18th birthday if the parent signed the same waiver.
What is an Indemnity Agreement?
An
indemnity agreement is a contract wherein one party agrees to assume or take on the liability
of another party. The best example of an indemnity agreement is an auto
liability insurance policy. It can also be added to a contract between
a person participating in a recreational activity and the participant
to make the participant assume the responsibility for the company’s
own negligence.
Indemnity Agreements and Children’s Claims
Parents are often required to sign both a Release and an indemnity agreement
before allowing their child to participate at trampoline parks and other
recreational businesses. Again, it is a contract. Thus, a minor can have
it declared void as to the minor. The parent, however, is bound by it.
So, let’s assume only one parent signed the release. When the child
is injured that parent cannot get out of the waiver nor the indemnity
agreement. The other parent can file suit on behalf of the child. However,
the company will be able to cross-claim against the signor parent and
sue them for the amount of the judgment plus their attorney fees. That
debt will be community property, so both parents will owe it. As a result,
the waiver and indemnity agreement deters both parents from bringing a claim.
The Divorced Parent Situation
When the parents are divorced, the effect of the release and indemnity
agreement is the same as to the signing parent. However, as to the non-signing
parent, it does not have the same deterring factor. The non-signing parent
is no longer married to the signing parent, so they do not face the community
property debt problem. Moreover, because they do not necessarily care
if the other parent gets stuck with more debt, they can bring a claim
for the child and let the company turn around and sue the signing parent
for whatever judgment and attorney fees they incur.
Signing a Pre-Injury Release and Indemnity Agreement
As a you can see from the above, signing a waiver (release) and indemnity
agreement have serious consequences that affect a child’s ability
to pursue justice when a recreational activity provider negligently injures
them. They are very dangerous to sign regardless of whether you are single,
divorced or married. However, if you are divorced and considering letting
your kid participate in an event that requires the signing of a waiver
and indemnity agreement, you are way better off letting your ex-spouse
be the one who signs the document. At a minimum, you should never be the
only parent to sign for your child—make your ex-spouse sign too.
Bio:
Paul H. Cannon
is a trial attorney and shareholder at Simmons and Fletcher, P.C.
He has been practicing personal injury and product liability law since
1995. He is Certified in personal injury trial law by the Texas Board
of Legal Specialization since 2005.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Joseph Lawson.
Technology has permeated the legal practice in a myriad of ways, but the need to find and understand tech standards takes on added importance in the legal community when those standards are incorporated into court rules. Once a tech skill becomes a rule, lawyers who ignore it may not simply be risking inefficiency or losing a client’s business, they may be risking their ability to practice (see, e.g., Okla. Bar Ass’n v. Oliver, 369 P.3d 1074 (Okla. 2016)). For that reason, Texas attorneys may want to familiarize themselves with the Supreme Court of Texas Judicial Committee on Information Technology Standards (JCIT Tech Standards).
As a case in point, take a look at the reference to the JCIT Tech Standards incorporated into Texas Rules of Civil Procedure Rule 21(f)(8) by administrative order of the Supreme Court of Texas (Misc. Docket No. 13-9165 pdf). Subparagraph (D) provides that “[a] electronically filed document must:”
otherwise comply with the Technology Standards set by the Judicial Committee on Information Technology and approved by the Supreme Court.
Drilling down into the JCIT Tech Standards, one finds specific requirements from the type of software used to create PDFs to the applicable ISO compliance standard for efiled documents. Regarding requirements for scanned PDF documents, §3.1(C) provides:
Prior to being filed electronically, a scanned document must have a resolution of 300 DPI.
Incorporation of these standards into the Rules of Civil Procedure strongly suggests that legal tech competency has moved from recommended to required.
Where can attorneys turn to keep up with emerging tech competencies? Your local law library can help. Public and academic law libraries can assist with research into the rules governing required tech skills. Many also collect resources covering specific software used in the legal profession, like the resources in our Legal Tech Collection that include ABA publications on Adobe Acrobat, MS Word, and more. Some law libraries even offer legal tech classes. The Harris County Law Library’s Legal Tech Institute offers free CLE on a variety of topics, including MS Word for Legal Work in which attorneys can learn how to create the type of PDF referenced in the JCIT Tech Standards. Visit our website and keep following our Tech Tuesday posts to learn more!
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Michael P. Maslanka.
This month, I turn 65. At this milestone, I’d like to share five beliefs I now hold. Let me add: This is not, I hope, my “Last Lecture.” Those decisions are well above my pay grade. So, join me in looking in life’s rear-view mirror.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Susan Ross (US).
On July 17, 2018, the federal appeals court located in Washington, D.C. issued a ruling in a case involving an intersection of copyrighted material (standards) and non-copyrightable material (laws and regulations). The appeals court remanded the matter back to the trial court, to determine under what circumstances a non-profit organization could publish private standards as part of the organization’s publication of the laws. (American Society for Testing and Materials v. Public.Resource.Org, Inc., No. 17-7035 (D.C. Cir. July 17, 2018).)Background
The case began in 2012, with a non-profit organization named Public.Resource.Org (“PRO”) embarking on a mission “to make the law and other government materials more widely available.” Because many laws and regulations incorporate private organizations’ standards, PRO would purchase one copy of the referenced private standards and make the laws and standards publicly available at no charge on PRO’s website.
The standard-setting organizations objected, and filed a lawsuit against PRO, claiming copyright infringement among other things. PRO raised defenses that (1) by incorporating the standards into the laws/regulations, the standards lost their copyright protection; and (2) PRO’s use of the standards was “fair use” under the copyright law.
Both parties moved for summary judgment at the trial court level. The trial court granted summary judgment in favor of the standard-setting organizations, and granted an injunction against PRO’s publication of the standards. PRO appealed.
The appeals court vacated the injunction and remanded the case back to the trial court on the issue of the “fair use” affirmative defense. The U.S. copyright law lists four factors in analyzing a “fair use” claim:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
17 U.S.C. § 107.
In this case, the appeals court found that applying these four factors may lead to different results, depending upon the nature and extent of the incorporation (or cross-referencing) of the private standard into the law or regulation.
In the U.S., laws and regulations are not subject to copyright protection. In analyzing the “fair use” defense, the appeals court focused on the differences between a law’s requiring compliance with an entire standard, to requiring compliance with designated sections of a standard, to using standards for informational purposes.
The court analyzed each of the four factors separately. With respect to the first factor (purpose and character of use), the court stated: “Where an incorporated standard provides information essential to comprehending one’s legal duties, for example, this factor would weigh heavily in favor of permitting a nonprofit seeking to inform the public about the law to reproduce in full the relevant portions of that particular standard.” In contrast, a reference to a specific section of a standard “might justify reproducing that portion” of the particular standard. If, on the other hand, the standard would merely “help inform one’s understanding of the law” and is not essential to compliance, then “PRO’s use might be less transformative and its wholesale copying, in turn, less justified.” In other words, “whether PRO’s specific use serves that value [of informing the public about the law] must be assessed standard by standard and use by use.”
The second factor (nature of the work) similarly will require an individual analysis, although the appellate court recognized that most standards “fall at the factual end of the fact-fiction spectrum.” Because the copyright law was intended to protect creative works rather than facts, this factor will more likely support a finding of fair use.
The third factor (amount and substantiality of use) was largely addressed by the court in the discussion above. “If PRO limits its copying to only what is required to fairly describe the standard’s legal import, this factor would weigh strongly in favor of finding fair use here, especially given that precision is ten-tenths of the law.”
Finally, with respect to the fourth factor (market impact), the appeals court rejected the claim that nonprofit PRO’s use of the standards for fund-raising was for “commercial purposes.” The court, however, stated that the standard-setting organizations “are right to suggest that there may be some adverse impact on the market for the copyrighted works PRO reproduced on its website.” That determination will also be part of the analysis on remand, but the court offered three additional guideposts for analyzing this factor:
(a) Given that the standard-setting organizations make copies of their standards freely available in “controlled reading rooms,” how much additional harm to the market is caused by PRO?
(b) Because standards incorporated into law are sometimes outdated, is PRO’s posting those outdated standards harming the market for current versions? For example, if a regulation specifically incorporates the 2011 standard, and an updated standard was issued in 2016, what would be the impact on the market for the 2016 version of the standard?
(c) Can the standard-setting organizations continue to make sufficient revenues to have an adequate incentive to continue producing these standards?
The appeals court expressly did not decide whether the U.S. Constitution permits copyright to persist in works incorporated by reference into laws, or related questions such as whether updates to the references in laws/regulations mean that the previous versions of the standards could “re-acquire” copyright status.
The post Public laws, private standards, and copyright “fair use” appeared first on The Brand Protection Blog.
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