“You Have A Call…”

Originally published by Jani Maselli Wood.

**Editor’s Note: “War Stories” is a new feature where experienced lawyers walk us through some of their most memorable cases. If you have a case you would like to submit to War Stories, please email Allison at tallisonjackson@gmail.com** “You have a call.  It’s Sister Helen Prejean,” said my assistant. Without thinking, I replied, “From the […]

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Copyrightability of private standards in federal regulations

Originally published by Susan Ross (US).

On February 2, 2017, a federal trial court judge in Washington, D.C. ruled, in a 55-page opinion, that private standards developing organizations (“SDOs”) do not lose their copyright or trademark protection if a federal regulation adopts their standards.

Background

This case, American Society for Testing and Materials v. Public.Resource.Org, Inc., Case. No. 13-cv-1215 (TSC) (D.D.C. Feb. 2, 2017), is actually a consolidation of two cases brought by six private SDOs:

• American Education Research Association Inc.
• American Psychological Association Inc.
• American Society of Heating, Refrigerating and Air-Conditioning Engineers
• American Society for Testing and Materials
• National Council on Measurement in Education, Inc. and
• National Fire Protection Association Inc.

These SDOs develop private-sector standards for different industries including e.g. educational and psychological testing standards, product specifications, methods for manufacturing and testing materials, safety practices, and other best practices or guidelines.

5 U.S.C. § 552 permits federal agencies to incorporate “voluntary consensus standards” into federal regulations by reference. In 1995, Congress directed federal agencies to use privately developed technical voluntary consensus standards, in the National Technology Transfer and Advancement Act of 1994 (“NTTAA”).  As a result, the standards created by the SDOs were incorporated into various federal regulations.

The defendant, Public Resource, is a not-for-profit entity whose stated mission is to “make the law and other government materials more widely available so that people . . . can easily read and discuss laws and the operations of government.” Public Resource obtained copies of the SDOs’ standards that were incorporated into federal requirements. Public Resource then scanned those photocopies into searchable, electronic-reader-friendly versions and made them available free of charge on the Public Resource website.

SDOs typically make these incorporated standards publicly available on a “read only” basis (which sometimes means no printing or downloading), and will offer downloadable copies for sale.  The incorporated standards are also available to the public via an in-person visit to the Office of the Federal Register in Washington, D.C., or by visiting the agency that incorporated the standards.

The six SDOs sued Public Resource, claiming both copyright infringement and trademark infringement. Public Resource responded by raising a host of issues, none of which were successful.

The Ruling

A.  Copyright Matters

Public Resource first alleged the private standards were not eligible for copyright protection because they were technical standards. The judge ruled that, although the standards were technical, they still contained “markings of creativity,” making them eligible for copyright registration.  The court also pointed out that copyright protection did not prevent anyone from using/implementing the standards, only from copying the written documents.

Public Resource next argued that the works went into the public domain when they were incorporated into federal regulations. The court rejected this argument, ruling that § 105 of the Copyright Act applied only to works prepared by an officer or employee of the U.S. government as part of that person’s official duties.  All other works were to be evaluated on a case-by-case basis.  Because 5 U.S.C. § 552 was enacted 10 years prior to the current version of § 105 of the Copyright Act, the court found that Congress had  “carefully weighed the competing policy goals of making incorporated works publicly available while also preserving the incentive and protection granted by copyright, and it weighed in favor of preserving the copyright system.”  Congress also required that works incorporated by reference be “publicly available,” which federal regulations define to include being available in hard copy at the Office of Federal Register and/or the incorporating agency.  Congress does not require that “publicly available” documents be available without charge.  The court found that if “Congress intended to revoke the copyrights of such standards when it passed the NTTAA, or at any time before or since, it surely would have done so expressly.”

Public Resource then raised the affirmative defense of fair use. The court ruled against Public Resource on all four factors of faire use under § 107 of the Copyright Act:

• Purpose and Character of the Defendant’s Use. Public Resource claimed that its use was transformative by (1) “providing free access to ‘the Law’”; (2) “enabling others to use software to analyze the standards”; and (3) “enabling those with visual impairments to use text-to-speech software.”  With respect to point (1), the court ruled that Public Resource was not making copies in order to comply with legal requirements and, although Public Resource did not earn any revenues directly from displaying the standards, “its activity still bears ‘commercial’ elements given that it actively engaged in distributing identical standards online in the same consumer market.”  With respect to points (2) and (3), the court found Public Resource’s simple repackaging was not transformative.
• Nature of the Copyrighted Work. As described above, the court found that the standards, although technical, had elements of creativity.  The court stated:  “Plaintiffs’ standards are vital to the advancement of scientific progress in the U.S. and exactly the type of expressive work that merits full protection under the Constitution and the Copyright Act.”
• Amount and Substantiality of the Portions Used. Everyone agreed that Public Resource used 100% of the copied standards.
• Effect on the Potential Market. The court first found that the defendant engaged in “mere duplication” for commercial purposes and therefore harm to the SDOs could be inferred.  In this case, the court also found that inference especially appropriate because consumers were presented with the option to purchase a copy of the standards from plaintiffs or to download a PDF at no cost from the defendant.  Therefore, the defendant did not meet its burden to establish that its conduct could not even potentially harm the market.

With respect to the claim of contributory copyright infringement, the court denied the summary judgment motions from each party. The court found that, although the website with the Public Resource copy of the standards was accessed 4,164 times, “there is no basis for the court to determine that accessing a website is equivalent to copying or violating any of the exclusive rights under § 106” of the Copyright Act.

B.  Trademark Matters

Some of the SDOs had federally registered their trademarks and logos, which were included in Public Resource’s copies of the standards. The court found that consumer confusion as to the source of the standards was likely, so Public Resource’s defense of nominative fair use did not apply.

C.  Relief

The court found injunctive relief appropriate in this case. Public Resource was permanently enjoined from violating plaintiffs’ copyrights and from using plaintiffs’ trademarks in connection with the posting of the standards online or elsewhere.

Conclusion

Public Resource has stated that it will appeal the court’s ruling, so we will monitor the progress of the case.

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Is Harm to a Prosthetic Limb Property Damage or a Personal Injury?

Originally published by Hutchison & Stoy.

The first prosthetic limb that was used by a human was a toe. This toe was found attached to a woman’s body in Egypt, and it dates back to the years of 950-750, B.C..

Since then, technology has developed significantly. Johns Hopkins University has worked to develop a prosthetic limb that allows individuals to control prosthetic limbs with their minds. People are able to operate the limbs because the prosthetic limbs connect to nerve endings.

The cost to develop each of these limbs is about $500,000. While the researchers’ ultimate goal is to reduce the cost of production, prosthetic limbs are currently a very costly items.

 

So, imagine if a prosthetic limb is damaged in an accident.  Who is going to pay for it?  And how can they possibly afford it.

Currently, the law treats damage to a prosthetic limb as property damage. The law makes a distinction between the individual and the prosthetic. Proponents of this approach point out that prosthetic limbs do not contain DNA. Rather, these limbs are made of plastic or metal. They argue that the limbs are manmade and are much different from biological limbs with which humans are born.

Many believe that personal injury law may need to expand in order to include damage to prosthetic limbs; or to consider them personal injury as opposed to property damage. As technology develops, new questions emerge. Often these questions will be solved in courtrooms. Courts may have to reconsider whether damage to prosthetic limbs should still be labeled as property damage or if personal injury law needs to expand to cover damage to prosthetic limbs.

Why Do Some People Believe that the Law Should Treat Damage to Prosthetic Limbs as a Personal Injury?

The main reason why there has been a push to treat damage to prosthetic limbs as property damage is the expansion of technology in this field. Proponents of categorizing damage to prosthetic limbs as a personal injury believe that new developments in technology show that prosthetic limbs are not merely property. Rather, these limbs become an integral part of an individual’s body.

Just like almost every other technology, prosthetic limbs have become increasingly more modern since they were first developed. Johns Hopkins University’s research that was discussed in the introduction illustrates the modernization that is occurring in prosthetic limbs.

This technology clearly demonstrates the difficulty in categorizing damage to prosthetic limbs. This new technology has blurred the lines between the human body and the prosthetic limbs because the limbs can communicate directly to the body through the use of electrical signals, and because of this communication the prosthetic limb is able to operate in a nearly identical manner as a biological limb operates.

Since the prosthetic limb is able to operate in the same manner that a biological limb would operate, people argue that the prosthetic limb is just an extension of an individual’s body. In fact, many people that depend on the use of prosthetic limbs do not make a distinction between the prosthetic limb and their body. They often consider the prosthetic limb to be part of them, and sometimes these limbs often become a permanent part of an individual’s body. Some prosthetic limbs are fused to the patient’s bone marrow. After this operation, the limb cannot be removed without another operation. This is a huge change from detachable limbs , and thus, the argument is made that prosthetic limbs are not just property.

Another reason why there is a push to categorize damage to prosthetic limbs as a personal injury is that people form a psychological connection to their prosthetic limb that mirrors the connection that an individual would display to their biological limb.

Prosthetic limbs have always had a psychological impact on people. Historians believe that the prosthetic toe that was discovered on the Egyptian woman was created so that the woman could continue to wear sandals. The Egyptian sandal was a very important part of society and the woman likely possessed the prosthetic toe so that she could fit into this tradition.

Today, the use of the prosthetic limb often brings a sense of identity to an amputee that once felt incomplete.

How Would Categorization of Damage to a Prosthetic Limb Impact Personal Injury Cases?

Two big things would change if damage to prosthetic limbs is considered a personal injury rather than property damage. First, the recovery that people who suffer damage to a prosthetic limb would likely increase.

Currently, the law treats damage to prosthetic limbs just like any other type of property damage. This concept can be illustrated through an example. If an individual’s prosthetic limbs were destroyed after a car accident, current law would treat damage to the prosthetic limb just like damage to a car.

This likely means that the victim would be able to recover the cost of the limb. Proponents of changing the law to consider damage to a prosthetic as a personal injury believe that the damages that individuals receive under the property damage regime do not adequately demonstrate the victim’s reliance on the prosthetic limb.  This is because monetary policy limits on property damage are often much lower than personal injury policy limits.  For more information on policy limits, read our blog on “How Insurance Works.”

For example, in 2009, American Airlines damaged a quadriplegic veteran’s mobility assistive device. American Airlines offered to pay the veteran $1,500 to replace the device. This compensation did not reflect the fact that the veteran was completely dependent on the device for mobility. In fact, without the assistance of the mobility assistive device the veteran lost all mobility. Clearly, $1,500 is not enough compensation to reflect the harm that the veteran suffered because of American Airline’s negligence.

In addition, if there was a shift to considering damage to prosthetic limbs personal injury the prosthetic limbs would be protected by laws that cover assault and battery rather than strictly property damage. This will allow people who have prosthetic limbs to utilize more theories of recovery than they can currently use. The expansion of causes of action will also likely increase the recovery that individuals with prosthetic limbs can recover in a lawsuit.

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Summary of circuit split about “cross-appeal” rule –

Originally published by David Coale.

It is well-settled nationally that “an appellate court may not alter a judgment to benefit a nonappealing party” because “it takes a cross-appeal to justify a remedy in favor of an appellee.” Greenlaw v. United States, 554 U.S. 237, 244–45 (2008).

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Free legal issues workshops in San Antonio on Feb. 25

Originally published by Jillian Beck.

Members of the public will be able to learn about common legal issues from local attorneys at free workshops in San Antonio on February 25.

During the 23rd Annual People’s Law School, hosted by the San Antonio Bar Foundation and St. Mary’s University School of Law’s Pro Bono Program, local attorneys will share their expertise on topics including wills, divorce, immigration, landlord-tenant issues, identity theft, and the risks and consequences of driving while intoxicated.

“Our goal is to empower the community with practical knowledge and information about their legal rights,” attorney Dominic J. Negrón, who will teach a session called “How to Help When Your Loved Ones Cannot Make Decisions,” said in a press release.

Doors for the event, which will be in the Law Classrooms Building at St. Mary’s University School of Law, open at 8:30 a.m. and classes will be from 9 a.m. to 1 p.m.

For more information, go to the San Antonio Bar Association website.

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Is a Dispute Over General Contractor Overhead and Profit Appropriate for Appraisal?

Originally published by Edward Eshoo.

In Windridge of Naperville Condominium Association v. Philadelphia Indemnity Insurance Company,1 a federal district court in Illinois recently addressed the issue whether appraisal is appropriate to resolve a dispute over the need for a general contractor to perform repairs following a covered loss. There, hail damaged townhome buildings, requiring repairs. Philadelphia paid for losses it … Continue Reading

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Due Process and Expedited Removal in the Interior

Originally published by Josh Blackman.

President Trump’s January 27 executive order, which denied entry to nationals of certain country, has attracted (by far) the most attention of his various actions. But his new policies to expedite the removal of aliens who have already entered the United States will have a far, far greater impact.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) created a new process known as “expedited removal,” which permits the government to remove certain aliens “without further hearing or review unless the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution.” This procedure applies to aliens who arrive at the border (including an airport) and are deemed inadmissible–for example, an agent determines that their paperwork is fraudulent, or even if it is not fraudulent, the agent believes that false answers were provided to oral questions. The application of “expedited removal” at the border has raised serious due process concerns, though, for reasons I’v written about over the past few weeks, traditionally courts do not scrutinize the rights of aliens (other than green-card holders) who have not yet entered the United States.

However, the “expedited removal” procedure does not apply only at the borders. 8 U.S.C. 1225(b)(1)(A) (iii)(II) subjects to “expedited removal” an alien who entered the United States without inspection (usually by illegally crossing the border) and who has not “been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility.” As written, this provision is extremely broad, and has no geographical locus for this class of aliens.

Through a series of rulemakings, the Bush 43 administration interpreted that provision. In 2002, the Immigration and Naturalization Service announced that it would place in “expedited removal proceedings certain aliens who arrive in the United States by sea, either by boat or other means, who are not admitted or paroled, and who have not been physically present in the United States continuously for the two-year period prior to the determination of inadmissibility under this Notice.” (This notice contained an exception for Cubans, under the so-called “Wet-Foot/Dry-Foot” policy.)  Two years later, the Department of Homeland Security expanded its interpretation of 1225(b), to place in expedited removal aliens deemed “inadmissible” who “who are encountered by an immigration officer within 100 air miles of the U.S. international land border, and who have not established to the satisfaction of an immigration officer that they have been physically present in the U.S. continuously for the fourteen-day (14-day) period immediately prior to the date of encounter.” This policy, which focused primarily on border-crossers–hence the 100-mile radius–was crafted to “deal more effectively with the large volume of persons seeking illegal entry.” (Here too there was an exception for Cubans, citing the relationship between our two governments).

Unlike expedited removals at the border, where due process rights do not attach to aliens, once inside the United States, the due process clause applies. There has been a longstanding debate among immigration law professors about whether this provision violates the 5th Amendment. (Gerald Neuman wrote in the Columbia Law Review that this regime, especially after Boumediene, likely violates the Due Process as well as the Suspension Clause). But as the Court’s recent arguments in Hernandez v. Mesa suggest, constitutional rights are often in a nebulous place at or near the border. Indeed, under 8 U.S.C. s. 1357, federal agents can conduct warrantless searches “within a reasonable distance from any external boundary of the United States.” The government has interpreted this “reasonable distance” to be 100 miles. In Almeda-Sanchez v. United States, for example, the Court upheld a warrantless search 25-miles from the Mexican border. The warrantless search in United States v. Martinez-Fuerte was 66 miles from the Mexican border.

DHS’s new policy, however, goes far past the 100-mile border radius, and pushes the jurisdiction to the statutory limit. Any alien found in the interior is subject to expedited removal if he has “been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility.” This new policy will be published in the Federal Register.

No doubt, there will be challenges to this regime. My first thought concerned possible APA challenges–specifically, was the decision to waive the 30-day comment period proper? Here, President Obama provides a defense. Last month, however, Secretary Johnson eliminated the exception for expedited removal for Cuban nationals encountered on U.S. soil. DHS put this regulation into effect immediately, finding that “good cause” exists to suspend the 30-day notice and comment process. “Delaying the implementation of this notice to allow public notice and comment would be impracticable and contrary to the public interest,” the notice stated.

Second, there may be challenges to the Secretary’s authority to designate such a wide swath of aliens subject to expedited removal. Here too, the Cuba notice provides support for DHS.

Congress explicitly authorized the Secretary to designate categories of aliens to whom expedited removal proceedings may be applied, and made clear that “[s]uch designation shall be in the sole and unreviewable discretion of the Secretary and may be modified at any time.” Section 235(b)(1)(A)(iii)(I) of the Act, 8 U.S.C. 1225(b)(1)(A)(iii)(I).

The strongest challenge concerns the Due Process Clause. Jill Family writes that these aliens are subject to the full panoply of the Due Process Clause, and cannot be removed in this cursory fashion without any hearing. Peter Marguiles adds that unlike aliens found near the border, those within the interior–for as long as two years–will have developer stronger ties to the United States. Under Matthews v. Eldridge, such aliens must be afforded more process prior to removal. Peter also notes that there are potential suspension clause concerns.

I will revisit this topic after I’ve reviewed the notice in the Federal Register.

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