Unauthorized Movie Downloads Create New Opportunities For Lawyers
September 3rd, 2010
I recently heard of a man who received a notice from his internet service provider advising him it intended to release his account information in response to a court subpoena. A German movie producer filed suit in a United States federal court seeking damages for copyright infringement from more than 2,000 unknown individuals who allegedly downloaded the movie “The Far Cry” without paying for it. Unfortunately, the man discovered his teenager was one of them.
The law firm doing the suing, Dunlap Grubb & Weaver of Leesburg, VA, has graciously agreed to accept $1,500.00 from each defendant to release them from the lawsuit. (The cost to download the movie legally is $28.00). They have even provided a website, an online template release form, and the ability to pay by credit card. Individuals who refuse to fork over the money, however, are threatened with continued litigation and statutory damages of up to $150,000.00 for each infringement.
I have no issue with a movie producer seeking to enforce its copyright or a law firm willing to assist and making a few bucks in the process. However, the “one size fits all” approach seems more about making money and less about enforcing copyrights. If the lawyers and the movie producers have the technology to identify the IP addresses to which the movies were downloaded, one would think they have the technology to distinguish between those who routinely engage in film piracy, the aberrant teenager, or even someone whose computer was compromised and did not see the movie at all. DG&W’s strategy contemplates that even the innocent will choose to pay $1,500.00 rather than the higher legal fees they would incur to simply remove themselves from the case. It is unfortunately reminiscent of a scheme engineered not long ago by another law firm that sent disabled persons into area establishments looking for ADA violations and then sent letters to the proprietors demanding $2,500.00 to avoid a lawsuit because a door was not wide enough or a bathroom stall was not equipped with handbars. The ADA, the Copyright Act, and other statutes like them were intended by Congress to right a wrong and establish a public policy, not create cottage industries for lawyers.
I called an attorney at DG&W who readily acknowledged that neither the firm nor the movie producer cared about the individual circumstances of each defendant snared by its technology. He noted that the minimum statutory penalty was $750.00 and the highest was $150,000.00. The $1,500.00 also represented an amount intended to help the movie producer recoup the costs of developing the technology used to identify the IP addresses of potential defendants. The attorney did not find it troubling that the truly guilty could get off as cheaply as the truly innocent. Or is it the technology is more developed than we are lead to believe and there are plans for future litigation against the real culprits financed by the settlements with the masses? Hmmmmmmm?
Posted in A Lawyer's Perspective | No Comments »
Taxpayers Subsidize Phila. Sexual Harassment
August 31st, 2010
In the latest example of powerful public officials abusing their offices, we have Carl R. Greene, executive director of the Philadelphia Housing Authority. Greene is accused of groping Elizabeth Helm, an interior designer, at a Center City restaurant while they were discussing her promotion. Greene has been suspended for 30 days while PHA board members try to learn why they were not told of three earlier harassment claims involving Greene in prior employment which were settled confidentially for $98,000, $200,000 and $350,000 according to the Philadelphia Inquirer. Greene is said to be undergoing medical care for “stress.” Helm is now harassing the taxpayers of Philadelphia by adding $25,000 per day to her original $300,000 demand while the PHA balks at signing a settlement agreement. You didn’t think Mr. Greene would be held accountable for his actions, did you?
Under the federal anti-harassment law known as Title VII (the Civil Rights Act of 1964) and the Pennsylvania Human Relations Act, only the employer is deemed liable for acts of harassment committed by those whom it employs. The perpetrator cannot be sued. Consequently, it is the taxpayers who pay to settle the claims arising from public officials’ indiscretions while the officials are permitted to repeat their indiscretions elsewhere or seek medical care for “stress.” In Mr. Greene’s case, nearly a million dollars of public funds will have been wasted because he can’t keep his hands to himself. Think of the public parks that could have been built, the emergency equipment purchased or roads paved with that money! While insurance may cover some of the loss, government entities usually have large taxpayer-funded primary coverage.
In Ms. Helms’ case, she may be able to sue Greene personally for assault and battery because of the physical contact. With a $300,000 annual salary, Greene should be hit where it hurts. However, so far, it seems Ms. Helms is content to hold the City and its taxpayers hostage. And while Ms. Helms did not deserve to be groped and is deserving of some compensation under the law, her $25,000/day demand shows she’s all about the money. Ms. Helms and her attorney will ultimately receive a lucrative settlement. Mr. Greene will move on to some other six-figure employment or may even stay where he is protected by his politically connected friends. The City of Philadelphia taxpayers are the real victims.
Posted in Employment Law | 1 Comment »
Out From Behind The Desk
June 22nd, 2010
Tomorrow morning at 3:15 a.m., I will be on my way to the Dominican Republic, not to the beaches of Punta Cana, but to an industrial town in the south called Haina near the capital of Santo Domingo. I was there last year and am returning a second time to continue the work begun then. I am part of a mission team, organized by my church, but just one of many such teams traveling to the “DR” during the year to help local communities build churches, schools, medical clinics and water treatment facilities. Many of the teams were diverted earlier in the year to aid the Haiti earthquake relief. I will not be. I will be helping to build a church/school.
I do not write this blog as a pat on the back. My contribution is minimal in comparison to the leaders and organizers and to the Dominicans who labor to improve their communities year round. To be quite frank, before each trip I’ve wondered whether I should be going, whether ten days away from my office and my family in the summer is too long a commitment. Yet, it is what I gained from the experience last year, an admiration for the work ethic and resourcefulness of the Dominicans I joined and a deeper appreciation for what I have here at home, that makes me feel the lesson is worth repeating.
There are so many opportunities for us to get out from behind the desk and experience other peoples’ realities and learn from their and faith. One need not go to the DR, but only as far as Trenton or Philadelphia. It should be as much of a lawyer’s experience as the mandatory 12 hours of continuing legal education we must fulfill each year.
Posted in A Lawyer's Perspective | No Comments »
Supreme Court Expands Employer Review of Employee Communications
June 18th, 2010
In a 9 – 0 vote, the Supreme Court recently reversed a decision of the 9th Circuit Court of Appeals and held that an employee does not have a reasonable expectation of privacy in text messages sent on an employer provided pager even when the employer permitted personal use as long as the employee paid the overage charges.
In an earlier blog regarding the case of City of Ontario v. Quon, I foolishly placed my money on Mr. Quon. (Hence, my aversion for Atlantic City and the stock market). Mr. Quon was disciplined after his employer found and reviewed personal sexually explicit text messages sent via his pager. Because the employer deviated from its written policy by allowing personal use of the pagers as long as the employees paid the overage charges, I sided with the 9th Circuit in concluding Mr. Quon had a reasonable basis to believe his personal texts would be kept private. Not so, sayeth the Supreme Court. If it is on the employer’s communication equipment, the employer’s interest in monitoring its use takes precedence over employee privacy. The fact that the material was sexually explicit did not diminish the employer’s right to review the texts in their entirety. Writing for the court, Justice Anthony Kennedy stated “the search had a legitimate business purpose and was not excessive in scope.” (What can be more excessive than reading the texts in their entirety?) A unanimous vote was even more surprising given the current composition of the Supreme Court.
The ruling should set off alarm bells for employees and church bells for their bosses, but the message is clear. Employees should not use company provided equipment to send anything they would not want their employer to read or hear. Period. Moreover, employees may expect to be disciplined and even terminated for personal use of company provided equipment.
Posted in Employment Law | No Comments »
Pennsylvania Mini-COBRA Reminder
June 16th, 2010
Pennsylvania’s “Mini-COBRA” law has now been in effect for almost a year. The Mini-COBRA legislation signed by Governor Rendell back in June 2009 extends to small employers not covered by federal COBRA regulations the responsibility to offer separated employees the opportunity to purchase up to nine months of extended coverage on the employer’s plan. Failure to notify separated employees of the availability of the benefit may result in penalties and possible damages if a loss of coverage results in unpaid medical bills. (Please read my earlier blog entitled COBRA Mistakes Can Be Costly!).
Pennsylvania’s Mini-COBRA applies to all businesses with 2 to 19 employees who already provide group health insurance. It does not require small businesses who do not currently provide health insurance to their employees to offer a group health plan. Here are some of the distinctions between the PA Mini-COBRA and existing federal COBRA:
PA Mini-COBRA
Applies to employers with 2 – 19 employees
Provides 9 months continuation coverage
Insured must have been enrolled for at least 3 months
Applies only to group health plans through third party insurance companies
Employer may charge up to 105% of group rate
Employer must give COBRA notice within 30 days
Federal COBRA
Applies to employers with 20+ employees
Provides 18 months continuation coverage in most case and 36 months in special circumstances
Insured must be covered on day of qualifying event
Applies to self-insured group health plans as well as plans insured through third party insurance companies
Employer may charge up to 102% of group rate
Employer must give COBRA notice within 15 days
The 65% premium reduction provided for under the federal stimulus bill has expired. Employees selecting the continuation coverage must pay the full premium.
Posted in Employment Law | No Comments »
Where Does The Time Go?
June 15th, 2010
Wow! Has it been almost two months since I last wrote a blog? I marvel at attorneys who can blog almost everyday and still practice law. Or do they have someone on their staff who blogs for them?
Time management is a crucial element of a solo law practice, and especially for a litigation attorney where effective firm calendar management is often complicated by the courts and other attorneys. In other words, one’s time is not his own. In the last two months, I have had to complete thirteen depositions involving four different cases. That is far more than I have had in any similar period in the past eight years. My schedule has been further complicated by preparation for a planned trip out of the country and the deaths of two relatives.
We all have life to deal with outside of our businesses. I’m hardly alone in having a time crunch and don’t bemoan the fact. But I’d be interested in hearing from others out there in the blogosphere, especially other lawyers, about how you manage your practice, still see your kids . . . and keep up with your blogging.
Posted in A Lawyer's Perspective | 2 Comments »
Lower Merion Laptop Controversy Breeds More Litigation
April 24th, 2010
First, there was the class action lawsuit by a student’s family for invasion of privacy, then an FBI investigation. The school officials with the authority to turn on the laptop surveillance system have retained their own counsel. Now, the insurance company for the school district has filed a declaratory judgment action asking a court to rule that it’s policy does not cover the school district for legal bills or damages arising out of the other pending matters because the claims are not for bodily injury or property damage. Lower Merion should be credited with almost single- handedly rejuvenating the Philadelphia legal industry which had suffered in 2009 along with the rest of the economy.
56,000 images taken by surveillance through laptops of unsuspecting students inside their homes. Surveillance left running for days even after reportedly missing laptops were located. School officials taking the 5th Amendment and refusing to answer questions. One can only wonder where was the school’s leadership when all this was happening? Why wasn’t anyone asking questions before this seriously misguided program was implemented? Just think of all the money the school district could have saved Lower Merion taxpayers had it consulted legal counsel before handing out laptops with the surveillance system installed. The entire mess could have been avoided by a well crafted privacy policy disclosed to parents with signed acknowledgements from parents required before a student could take a laptop home.
The parents of students are rightly outraged over the distractions, the negative international attention brought upon their school district, and the impact all of this has had on their childrens’ education. But instead of blaming the media, they should be seeking the resignations of top school administrators and the entire school board.
Posted in A Lawyer's Perspective | 1 Comment »
COBRA Mistakes Can Be Costly
April 14th, 2010
I had a client come in recently whose former employer terminated his extended health care coverage under COBRA at the end of twelve months. Twelve months? I asked the client whether he had failed to pay the 35% co-pay on the premium, which he vigorously denied. A letter to the employer produced a phone call from a confused woman, apparently the company’s human resources representative by default, who was puzzled by the stern tone of my letter. When I explained to her that COBRA required continuation of health coverage for eighteen months, there was silence on the other end of the line.
After the phone call, I thought a refresher course on COBRA might benefit employers and employees out there in the blogosphere. The Consolidated Omnibus Budget Reconciliation Act requires employers to provided extended health coverage to employees and their dependents upon the happening of certain designated events, the most common being the termination of employment for anything other than willful misconduct. COBRA further requires employers to give terminated employees written notice of their rights and obligations under COBRA and afford them the opportunity to select continuation coverage within fifteen (15) days after termination of employment. What many employers apparently do not know is that they may be fined $110/day thereafter if they fail to give the required notice and may become liable for the employee’s uncovered healthcare expenses if the failure to give the notice results in a lapse of coverage.
Employees have a duty to make their COBRA selection within sixty (60) days of receipt of the notice from the employer and pay the co-pay for their premium (currently 35%) on time. If the co-pay goes unpaid more than thirty days past the first of the month, then the employer may terminate coverage without any further notice to the employee. However, an unpaid premium is the only reason for terminating coverage before the 18-month period ends, and then only if the employer has given the proper written notice in the first place.
In some limited cases, COBRA coverage may be extended to thirty-six months, for example if the employee becomes disabled and qualifies for social security disability within the first sixty days of unemployment, or if there is a death, divorce or separation, or if a dependent child ceases to be dependent during the initial eighteen months. Under these cicrumstances, the employee or the dependent has the obligation to notify the employer of the event triggering the coverage to thirty-six months.
In my client’s case, he had an unfortunate fall and incurred expensive medical bills after the erroneous termination of his coverage. We are hopeful that we can reinstate the insurance coverage through the employer and have the insurance company pay the bills. If the insurance company refuses, however, then the employer will be paying my client’s medical bills out of its own pocket. Imagine what that could do to your bottom line?
Posted in Employment Law | 3 Comments »
Fido’s First Bite Isn’t Free
March 26th, 2010
Being the son of veterinarians, I am always disappointed to see cases of irresponsible dog ownership, particularly dogs left to run loose through neighborhoods and breeds known for their aggressive behavior being poorly supervised. Irresponsible behavior with pets, especially dogs, can result in significant liability and, unfortunately, can lead to having the animal euthanized.
Under Pennsylvania law prior to 1996, a person could not be held liable in a dog bite case for the first incident of biting. The “one free bite” rule, however, was eliminated in 1996 by amendments to Pennsylvania’s Dog Law. Now, even the first bite can be presented to a jury as evidence of a dog’s propensity to attack without provocation. Violations of the Dog Law can also lead to fines and criminal penalties. Any person attacked by a dog may file a complaint with the local district justice to charge the owner with harboring a dangerous dog. If the district justice determines the dog is dangerous, even based on one bite, the judge can impose fines and require the dog to be registered. A second bite may result in the dog being put down. The judge’s ruling may also be used to establish the owner’s liability in a civil case for monetary damages.
The Dog Law requires owners to have their pets properly licensed and vaccinated, contained in a home or yard, and kept on a leash while off the owner’s premises. Violations of the dog law, such as allowing a dog to run free off the owner’s property, constitutes “negligence per se.” That means the judge will tell the jury the owner was at fault if the dog bites someone without provocation while off the owner’s premises.
Pet ownership, and especially ownership of dogs, requires a responsibility approaching that of parenthood. Dogs need to be cared for, loved, shown boundaries, supervised, and disciplined when necessary. Ignoring them or, worse, showing them cruelty, failing to meet their needs, and leaving them loose on the streets will create a vicious thug just as much as it will for a child. While the law of criminal responsibility for parents who do not parent is still evolving, liability for irresponsible pet ownership is clear and that irresponsibility may, one day, come back and bite you!
Posted in Personal Injury | No Comments »
3rd Circuit Saves Teen From Prosecution for “Sexting”
March 19th, 2010
In another headline from the information age, the Third Circuit Court of Appeals has saved a young woman from being prosecuted under child pornography laws for her own stupidity. The teen was among several girls whose pictures in various stages of undress were found on student cell phones at a Tunkhannock, PA high school. The district attorney in the northeastern Pennsylvania county threatened to prosecute the young women for distributing pornography unless they attended a class and wrote an essay about their misguided actions. Several girls complied with the edict, but this young woman’s parents refused to have her participate.
In a precedent setting opinion and the first in the nation to address sexting, the Third Circuit held that the district attorney violated the First and Fourteenth Amendments by attempting to compel speech and coerce the children and parents into “permitting him to impose on their children his ideas of morality and gender roles.” The Third Circuit declined to address whether “sexting” is free speech.
While I agree with the Third Circuit that it is not for the local district attorney to involve himself in parenting and threaten prosecution on dubious grounds, every parent should nevertheless be very concerned about “sexting” and the grave danger these young women place themselves in by enabling others to misuse their photographs (not to mention the possible impact on college applications and future employment). I hope the parents of the young woman taught her their own lesson on personal responsibility and did not condone “sexting” as a proper form of expression.
Posted in A Lawyer's Perspective | No Comments »
