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Thursday, February 26, 2015

Iowa Bill Would Prohibit Sexual Orientation Conversion Therapy for Minors

So reports the Des Moines Register:

A bill that would ban Iowa mental health professionals from trying to change the sexual orientation of gay patients under age 18 was approved by the Iowa Senate Human Resources Committee Wednesday on a straight party line vote. 
Senate File 31 was sent to the Iowa Senate floor with the committee's eight Democrats in favor and four Republicans against. While the measure could be approved this session by the Democrat-led Senate, it appears unlikely the GOP-controlled House will consider the bill. 
So-called conversion therapy attempts to convert gay, lesbian, bisexual and transgender individuals from homosexuality to heterosexuality through prayer and other efforts. It's based on the idea that a person's sexual orientation or gender identity is a choice.
The full text of the bill is available here.

I have blogged at length about a similar ban in California, the First Amendment challenge to the ban, and the Ninth Circuit's ultimate decision that prohibiting sexual orientation conversion therapy for minors is constitutional.

If the Iowa bill were to pass, I would not be surprised if it ended up facing similar constitutional challenges. California and New Jersey laws prohibiting sexual orientation conversion therapy for minors have survived constitutional attacks so far. But if more states continue to pass these laws,  some of the First Amendment challenges may end up succeeding. And if that happens, it could set the stage for a pretty fascinating Supreme Court case.

Monday, February 16, 2015

FAA Releases Notice of Proposed Rulemaking for Drone Regulations

So reports the Washington Post:
Thousands of businesses could receive clearance to fly drones two years from now under proposed rules that the Federal Aviation Administrationunveiled Sunday, a landmark step that will make automated flight more commonplace in the nation’s skies. 
Meanwhile, the White House on Sunday issued presidential directive that will require federal agencies for the first time to publicly disclose where they fly drones in the United States and what they do with the torrents of data collected from aerial surveillance. 
Together, the FAA regulations and the White House order provide some basic rules of the sky that will govern who can fly drones in the United States and under what conditions, while attempting to prevent aviation disasters and unrestrained government surveillance.
The notice of proposed rulemaking is here. A list summarizing the proposals can be found here. These rules would include requirements that drones not be operated recklessly, that drones be operated within the line of sight of the person controlling the drone, and that people who operate drones obtain licenses.

Notably, the second to last proposal is that "Proposed rule would not apply to model aircraft that satisfy all of the criteria specified in Section 336 of Public Law 112-95." Here is the text of that section:

(a) IN GENERAL.—Notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft, if—

(1) the aircraft is flown strictly for hobby or recreational use;
(2) the aircraft is operated in accordance with a community based set of safety guidelines and within the programming of a nationwide community-based organization;
(3) the aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization;
(4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and
(5) when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)).

(b) STATUTORY CONSTRUCTION.—Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.

(c) MODEL AIRCRAFT DEFINED.—In this section, the term ‘‘model aircraft’’ means an unmanned aircraft that is—

(1) capable of sustained flight in the atmosphere;
(2) flown within visual line of sight of the person operating the aircraft; and
(3) flown for hobby or recreational purposes.
This suggests that the drone-licensing and other requirements suggested in the notice of proposed rulemaking would not apply to hobbyist drone use.

While hobbyist use may not be affected very much if this proposal remains, these regulations would throw a wrench into the plans of companies like Amazon that have suggested that they may use drone technology to make deliveries. Prohibiting the operation of drones out of the sight of the people controlling drones would render these business models implausible. Other types of drone use like land and real estate surveys may become more widespread under these rules.

It is good to see that the FAA has finally released these proposals. I suspect that there will be a great deal of debate in days to come over these rules, and I look forward to seeing what rules end up being adopted once comments on these proposals are submitted.

Wednesday, February 11, 2015

Is it Constitutional to Prosecute Those Who Mail Cow Manure?

My attempt at answering this age-old legal question is prompted by this story about a pair of feuding Iowa couples. Here is the report:
A southeast Iowa couple who were sent cow manure in the mail have sued the woman who acknowledges that she paid to have the poop sent.

The Hawk Eye reports that Mary Eipert and Steven Rowland want a judge to order Kimberly Capdevila and her husband, Carlos, to stop their dog from barking all day and night. The lawsuit filed Monday seeks compensatory and monetary damages for the barking and for what the lawsuit says is harassment by the Capdevilas.

The two couples are neighbors who have been squabbling over the barking dog. Fifty-one-year-old Kimberly Capdevila has said she had the manure sent as a practical joke. She has pleaded not guilty to a misdemeanor charge of harassment. She’s due back in court on April 7 for pretrial conference.
In this post I will briefly discuss the aspects of the Rowlands' civil claim, but then move on to discuss the criminal side of this story. I will look into the crime that Kimberly Capdevila has most likely been charged with, whether the prosecution has a strong case, and whether prosecuting Capdevila under this law is constitutional.

Monday, February 9, 2015

3D Printed Left Shark Prompts Cease-And-Desist Letter from Katy Perry's Lawyers

So notes the ABA Journal, reporting on a letter that Katy Perry's lawyers sent to the 3D printing company, Shapeways:

Lawyers for Katy Perry sent a cease-and-desist letter to a 3D printing company selling Left Shark, the uncoordinated costumed character who danced next to the singer during the Super Bowl. 
. . .

Shapeways complied and removed Left Shark from its catalog. According to its website, users can design a product with the help of a 3D printing app and upload it to Shapeways, which produces the product and sells it.

. . .

[The designer of the 3D printing model, Fernando] Sosa told CNBC he offered to pay royalties to market Left Shark, but he was turned down. Sosa has since placed his design on Thingiverse, which requires the downloader to do the 3D printing, according to Gigaom. Sosa is offering the download for free.
Above the Law has a portion of the cease and desist letter here.

Here's a video of Katy Perry's Superbowl performance where Left Shark made its appearance. The poor dancing that rocketed the shark to international renown begins at around 1:25:

Staci Zaretsky at Above the Law comments on this story as well. She notes that New York University Law professor, Christopher Sprigman, takes the position that Left Shark is a useful article and therefore cannot be copyrighted.

Going to Twitter, it appears that this story has developed further since Above the Law's initial coverage. Sprigman posted a link to this announcement which suggests that the US Copyright Office has taken the position that costumes are useful articles and therefore not subject to copyright protection.

Useful articles are design aspects of an item that cannot be separated from a utilitarian function that the item performs. As the Second Circuit Court of Appeals noted in Chosun International, Inc. v. Chrisha Creations, Ltd., quoting 17 U.S.C. § 101:

"[T]he design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.") (emphasis added). For this reason, one may not copyright the general shape of a lamp, because its overall shape contributes to its ability to illuminate the reaches of a room. But one can copyright the fanciful designs imprinted on, or carved into, the lamp's base, so long as those designs are unrelated to the lamp's utilitarian function as a device used to combat darkness.
But things may get complicated when costumes are involved. As this post from Foley & Hoag's Trademark and Copyright Law Blog notes, while a costume may indeed be a useful article, the Chosun court went on to state that design elements of the costume may be separated from its function as a costume and subject to copyright. In the words of the court, parts of the costume that "invoke in the viewer a concept separate from that of the costume's 'clothing' function," the addition of which is "not motivated by a desire to enhance the costume's functionality qua clothing," may indeed be subject to copyright protection. (Chosun, 413 F.3d at 329-30).

This abstract, vaguely worded test practically begs eager intellectual property lawyers to file lawsuits.

Fortunately for Fernando Sosa, the designer of the 3D printed Left Shark, it looks like Sprigman is taking his views beyond the world of tweets and commentary. From Sosa's Twitter account:

Sosa may indeed need legal representation, since he has decided to share his Left Shark design on Thingiverse. While he is no longer selling the 3D printed Left Sharks, the cease-and-desist letter referred to Sosa violating copyright by using "shark images," as well as "shark costumes" in developing his 3D printed sculptures.

While Sosa may no longer be producing the sculptures himself, Katy Perry's claim over the images would likely extend to Sosa's digital design for the 3D printed Left Sharks. If Katy Perry continues to pursue her claim, there may end up being some interesting litigation over whether a costume can be copyrighted.

Friday, February 6, 2015

R. Francis Underwood Defeats Delaware Corporation's Non-Compete Agreement in Delaware Court of Chancery

So notes this alert from Wilson Sosini Goodrich & Rosati. From the beginning of the alert:

In non-competition agreement disputes involving California employees, it is common to encounter an agreement stating that the law of another state governs the non-compete. Since non-competes in California are generally unenforceable under California law, non-compete disputes involving California employees typically involve employees moving to California from another state, those working in California for a company with its principal operations in another state, or California-based employees that have signed a non-compete as part of an M&A transaction. Common to each of these situations (although not always the case) is the use of a non-compete agreement providing that its interpretation is governed by the law of a state other than California. 
In Ascension Insurance Holdings, LLC v. Underwood et al. (January 28, 2015), the Delaware Court of Chancery addressed whether a non-compete agreement entered into in connection with an acquisition, and governed by Delaware law, could be enforced against a California-based employee competing against his employer in California. The court, concluding that California law (and not Delaware law) must be applied despite a Delaware choice-of-law provision, refused to enforce the non-compete agreement, and denied the former employer's request for an injunction prohibiting the employee from competing.
The full text of the opinion can be found here. California's policy against non-compete agreements is notably strong, as I have written here. Since the employee, Underwood, negotiated and signed the contract in California and was expected to abide by the non-compete restriction within California, I think that the Delaware Court of Chancery made the right decision to refuse to recognize the choice of law provision in the contract.

While my interest in non-compete agreements and conflict of law issues drove me to post about this case, I also took note of the case due to the defendant's last name - Underwood. Readers of this blog should know that I am a fan of House of Cards and that I often look out for any intersections between the show and the world of law. The strategy of challenging a Delaware corporation's choice of law provision in a Delaware court seems bold. It struck me as something that Francis Underwood (the central character in House of Cards) would pursue were he to find himself in the defendant's circumstances.

While the defendant's full name as stated in the court's opinion -- "Roberts F. Underwood" -- initially dispelled my suspicion that the defendant was channeling the legendary politician, I decided to investigate further. Some Google searching led me to a Utah insurance agent registration profile for "Roberts Francis Underwood," who is employed at Alliant Insurance. Most notably, that page revealed that Underwood had previously been associated with Ascension Insurance before becoming associated with Alliant.

This suggests that the defendant's full name is, in fact, Roberts Francis Underwood. This may explain why the Delaware Court of Chancery may have felt pressured into bending to Underwood's will (although the strong legal arguments on Underwood's side probably deserve some of the credit).

Tuesday, February 3, 2015

Guilty Verdict in San Diego Revenge Porn Case

NBC San Diego has the story here. From the report:

A San Diego man was found guilty Monday of 27 felony counts for creating a so-called revenge porn website, where he posted more than 10,000 sexually explicit photos of women online to extort them for hundreds of dollars each. 
It took a court clerk 20 minutes to read the list of convictions against 28-year-old Kevin Bollaert, guilty of 21 identity theft and 6 extortion counts. A mistrial was declared on one conspiracy count and one identity theft count.
. . .  
The case — the first of its kind, filed by the California attorney general — centered on a now defunct website called, created by Bollaert so ex-husbands and ex-boyfriends could submit embarrassing photos of victims for revenge. The photos also linked to victims’ social media accounts. 
Prosecutors say those who wanted to get the pictures taken down were redirected to another one of Bollaert's sites, There, the victims were charged $300 to $350 to have their photos removed.
I blogged about Bollaert's arrest back in December, 2013.

As the article also notes, California recently passed a law that criminalizes the sharing of sexually explicit photographs taken in the context of a private relationship. The first conviction under that new law was secured in early December.

California's recently-passed revenge porn law is a misdemeanor. But as Bollaert's conviction shows, those who base their businesses on revenge porn may face far more severe penalties from laws that are already on the books. Prosecutions of this nature may not be limited to defendants in California, since most states should have extortion and identity theft prohibitions that may apply to revenge porn websites.