If the issues in this case and this latest decision weren't an ongoing focus of my practice, I probably wouldn't have taken the time to look up the case and download the opinion, which is what I did, and much to my surprise, the decision was anything but a windfall for plaintiff Malibu Media LLC, a California distributor of pornographic films. Indeed, the court went through a seemingly reasoned analysis of the legal questions involved when deciding a motion to quash a subpoena, in accordance with FRCP 45(c)(3). The primary issues the court addressed were whether joinder was proper, whether the information sought by the subpoena was relevant, and whether the plaintiff is entitled to pursue its claims for relief as stated in the lawsuit.

The court dealt with the first two issues methodically, and resolved them in favor of denying the motion to quash. When arriving at the third factor, however, the court did not engage in much, if any analysis. The court quoted a case cited in the motion to quash, and then proceeds to its conclusion:

To be clear, the Court certainly does not condone the use of this litigation, and any attendant threat of embarrassment, to coerce any defendant to settle. As noted above, the [court's prior order] requires plaintiff to ensure it has an adequate factual basis before seeking to file an Amended Complaint naming any proper defendant, and that the Court, by granting plaintiff’s request for expedited discovery, has not authorized plaintiff to rely solely on the subscriber’s association with the IP address to supply that basis.

It seemed like the court didn't give much thought to the final argument raised in the motion to quash, and so I went back to re-read from the beginning of the opinion, which is when it occurred to me that the motion had been filed pro se (i.e. by the John Doe defendant himself, rather than by an attorney). A bad idea.

Most attorneys (myself included) take cases like these on a fixed fee basis, usually for less than what the copyright trolls are offering to settle for. The attorneys on the plaintiffs' side know what they're doing. They're familiar with the process, having done it numerous times before, and they have their arguments, briefs, and motions already prepared and ready to file. On top of that, the statutory penalties for copyright infringement are obscene (no pun intended), up to $150,000 for willful infringement, plus attorney's fees. All of that adds up to a less than desirable situation for someone to attempt to represent themselves in court.

But I digress. Regardless of the fact that it's a bad idea to try to defend yourself in a copyright infringement lawsuit, I wonder whether the outcome would have been the same if the motion had been properly drafted and filed by an Internet law or copyright attorney. The bigger problem is this, however: This most recent decision appears to be one of the few that sides with the plaintiff–copyright trolls; it therefore could have a negative precedential effect on future motions to quash filed against copyright trolls. Fortunately, the court's decision is marked "not for publication," but seeing as how the New Jersey Law Journal wrote about it, and I found the decision at the U.S. Court's website in less than 60 seconds, I'm not confident that the decision won't have any lingering effect.

11917746183 Hammer Opinion Denying Mtq_malibu Media

Rutgers University has apparently decided to fire head basketball coach Mike Rice, after ESPN aired secret video footage of the coach's behavior during practice sessions in his first two seasons in Piscataway. Athletic Director Tim Pernetti, who hired Rice shortly after taking the helm at Rutgers, suspended and fined the coach back in December, when he first learned about the tapes, which show Rice throwing basketballs at players' heads, and using excessive profanity and gay slurs.

After ESPN aired the video on national television, public outcry erupted for the coach's dismissal. The National College Players Association issued a statement calling for Rice to be fired; reportedly, LeBron James and his Miami Heat teammates were angered by the coach's behavior as well. Even NJ Governor Chris Christie weighed in on the issue (no pun intended), saying that he was "deeply disturbed" by the way the coach conducted himself.

Regardless of whether Rice's behavior was cause for termination, it looks as though he was punished twice for the same conduct. Again, the video footage was filmed during the coach's first two seasons at Rutgers, between 2010 and 2012. In December, AD Tim Pernetti suspended Rice for three games, and fined him $50,000. Since then, there have been no new reports or allegations of misconduct by the coach. So, in essence, he was fired for the same thing for which he was previously suspended and fined. In constitutional law, that's called double jeopardy, though I don't believe that that has much, if any, bearing on employment law. Even if firing Rice was the right thing to do, from a moral perspective, or for public relations, Rutgers is still obligated to honor the coach's employment contract (which I have not seen).

The contract probably allows the university to fire the coach for cause, and it's tough to argue that what he did wasn't cause for termination. But it's hard to imagine that the contract would allow the university to discipline the coach twice for the same conduct. If I were Coach Rice, I'd be speaking with an experienced contracts attorney. Don't get me wrong, it's highly unlikely that he'll get his job back, but there's a strong argument that Rutgers should have to buy out the contract, or, at very least, return the $75,000 he lost as a result of the suspension and fine they imposed on him in December. Rather than firing Rice for the same thing they previously fined and suspended him for, Rutgers would've been better off to fire the coach for his performance—or lack thereof—the Scarlet Knights failed to finish above .500 this past season, with an even worse 5–13 record in the soon-to-be-defunct Big East Conference.

Whether on the phone, by email, or at cocktail parties, people routinely ask me questions relating to the fair use doctrine. Indeed, fair use is one of the most misunderstood legal doctrines on the books. The reason it causes so many misunderstandings is that applying the doctrine's four-factor analysis will rarely, if ever, produce a clear answer as to whether the use in question is in fact fair use. Among the most common fair use misconceptions are that "it's okay to 'borrow' the protected material if it's for educational purposes," or "it's okay if the use is de minimis." (A fancy Latin word for 'small,' 'nominal,' or 'insignificant.')

One of the reasons for the latter misconception is only reinforced by last week's ruling by the Ninth Circuit Court of Appeals, in the case alleging that the critically acclaimed Broadway show Jersey Boys misappropriated a 7-second clip of the Ed Sullivan Show. Many folks will hear about the court's decision, or read about in the news, and will conclude (wrongfully so) that the reason the court found that the use of the TV show clip was okay was because it was only seven seconds long. Although the fact that the clip was indeed short, relative to the overall length of the show, the length of the borrowed material was just one of many factors that the court considered; moreover, although the court mentions that the clip was 7-seconds long six times in its 13-page opinion (PDF), the holding portion of the opinion says nothing about the length of the clip. That is telling (but probably only to those who are legally trained). A court's holding is the part of its decision that means something, or requires or prohibits some specific action. This was the Ninth Circuit's holding in the Jersey Boys' fair use case:

In the end, we are left with the following conclusion: [Jersey Boys'] use of the clip did not harm SOFA’s copyright in The Ed Sullivan Show, and society’s enjoyment of [the Broadway show] is enhanced with its inclusion. This case is a good example of why the “fair use” doctrine exists.

The bottom line is this: The penalties for copyright & trademark infringement can be substantial, even crippling. Don't ever assume that you can borrow someone else's material based on the fair use doctrine. Before you "borrow" something for your movie, song, advertisement, website, blog, photograph, etc., speak to an attorney who is familiar with the fair use doctrine.

Earlier: Camera Phones, Copyright Infringement & The Fair Use Doctrine

Photo credit: Flickr.com

New York Jets linebacker Bryan Thomas is asking the Morris County Prosecutor to accept him into “pre-trial intervention,” which is a New Jersey courts diversionary program for first-time offenders. The 6’4” 265-pound linebacker is facing criminal charges of aggravated assault and possession of controlled dangerous substances following a domestic incident last October during which he allegedly punched his wife in the stomach.

To be eligible for the PTI program, you must have no prior criminal history, and you cannot have used a diversionary program before (such as PTI, or conditional discharge). Additionally, PTI is typically only available for non-violent and lower-level crimes, and the county prosecutor’s office has to accept you into the program. Typically, offenses like this one (aggravated assault) would preclude PTI, but in this case the prosecutor might go along with it because the victim no longer wants to testify. The prosecutor’s choice, then, is to try the case without a key witness, and risk acquittal, or take the defendant into PTI, require domestic violence counseling, and hope that he learns his lesson.

In this case, it looks like Thomas will be admitted into the PTI program. Prosecutors use PTI in cases like this where his wife wants the charges dropped against him. If she is unwilling to testify and there are no witnesses to the alleged assault, the State will be unable to prove the charges against him beyond a reasonable doubt. As a result, rather than drop the charges altogether, they will allow him to complete PTI and domestic violence counseling in hopes that no other incidents like this occur in the future.

If Thomas is accepted into the PTI program, his charges will be suspended while he completes probation, counseling, etc. If he successfully completes the program, the charges will be dismissed and he will have no record from this incident. This seems like a fair result in this case. The bottom line is, if his wife refuses to testify and wants the charges dropped, PTI at least allows the State to monitor him and require that he attend counseling. In the alternative, the charges would be dropped altogether without any consequences at all.

--

Travis J. Tormey is a New Jersey trial attorney and the founder of the Tormey Law Firm, LLC, which is dedicated exclusively to criminal and drunk driving (DWI) defense. Travis has been certified to operate the Alcotest 7110, which is the breath testing device used to prosecute DWI cases in New Jersey, and Travis worked on two of the most influential DWI cases in recent history in New Jersey—State v. Holland and State v. O'Driscoll. Travis is also known for his expertise in defending sex crime charges, and disorderly persons offenses, and has been cited in New Jersey by the Bergen Record, Daily Record, and Asbury Park Press, and nationally by AOL News. Travis blogs at www.criminallawyerinnj.com and www.bergencountycriminaldefensedwilawyer.com.

Since I'm a volunteer firefighter, I was on duty and responding to emergencies all day Monday and Tuesday. I got to come home yesterday, and since then I've been spending time with my family. Today I started reaching out to clients, individually, to let them know that we're here and available to help if needed. If I haven't connected with you yet, you should expect to hear from me by tomorrow/Friday, when I plan on being in the office for most if not all of the day.

In addition to the courts being closed all week, we haven't received any mail since last Friday, so I have yet to find out as to when the various hearings and depositions that were canceled, this week, will be rescheduled.

Photo credit: flickr.com

Yesterday, the NCAA and the big four professional sports leagues filed a lawsuit against New Jersey Governor Chris Christie, alleging that the state law that was approved by NJ voters last November is a "clear and flagrant violation of federal law." The five sports organizations (plaintiffs) are asking the U.S. District Court for the District of New Jersey for preliminary and permanent injunctions against NJ officials, to enjoin (prevent) them from carrying out the law that authorizes sports betting in New Jersey. Here's why the State of New Jersey will prevail:

First of all, there's a legitimate argument that the federal statute at issue—the Professional & Amateur Sports Protection Act (PASPA), 28 U.S.C. § 3702—is unconstitutional. Second, even if the statute is constitutional on its face, because the NJ voters overwhelmingly approved the referendum, the state can argue that the statute is unconstitutional as applied because it violates the Tenth Amendment (state sovereignty).

And perhaps the most compelling reason that New Jersey will prevail is that courts don't hand out injunctions like Roger Goodell hands out fines and suspensions. There's a strict, three-part test that the plaintiffs must prove: 1) a likelihood of success on the merits of the lawsuit; 2) irreparable harm is likely if the court doesn't grant the injunction; and 3) that the injunction is necessary to "balance the equities" in the controversy.

Success on the merits essentially means that the plaintiffs have a clear right to relief, or, that there's very little doubt that they will ultimately win the case. In this case, even if the plaintiffs could ultimately win, it's not so clear or obvious as to sufficiently prove a likelihood of success. To try to show their likelihood of success, the plaintiffs simply cited the federal statute at issue—which purportedly bans sports betting in all states except Nevada, Delaware, Montana, and Oregon. But there is a countervailing argument—that the federal law could be unconstitutional. Even though the plaintiffs have the burden of proof, all Gov. Christie (who was a fairly astute lawyer and federal prosecutor in his day) has to do is show the court that there's doubt.

With regard to irreparable harm, the plaintiffs said this in their complaint: 

[A]uthorization of sports gambling in New Jersey would irreparably harm amateur and professional sports by fostering suspicion that individual plays and final scores of games may have been influenced by factors other than honest athletic competition. Plaintiffs cannot be compensated in money damages for the harm that sports gambling poses to the character and integrity of their respective sporting events. Once their reputations and goodwill have been compromised, and the bonds of loyalty and devotion between fans and teams have been broken, Plaintiffs will have been irreparably injured in a manner that cannot be measured in dollars.

Once you consider the undeniable fact that, even without being lawful, sports betting is a multi-billion-dollar industry, the irreparable harm argument is almost laughable. Further, the NJ law specifically carves out local collegiate sports betting from being permissible, which chips away even more of the NCAA's assertion that they will be irreparably harmed by the law.

But there are a couple more reasons that New Jersey will prevail. Say what you want about Chris Christie; you may not like him, his mouth, or his politics, but he has a proven track record of winning. Finally, the pink elephant in the room is Atlantic City, NJ, which for all intents and purposes is the Gambling Capital of the East Coast. With all due respect to Mike Florio, I don't believe that the Third Circuit's ruling on sports betting in Delaware will be controlling in this case. As I said back in November, the state of New Jersey spent a great deal of money getting this law passed. They knew about PASPA, and they got sports betting in NJ on the ballot anyway. It wasn't easy, and it wasn't cheap, and they wouldn't have done it if they didn't believe that the benefits outweighed the risks.

READ:

 Complaint for Declaratory & Injunctive Relief, No. 3:12-cv-04947 (D.N.J. filed Aug. 7, 2012) (PDF)

SEE ALSO:

NJ Says 'Yes' to Sports Betting, But Why?

Tim Dahlberg, Time to do away with sports betting stigma

PHOTO CREDIT: DonkeyHotey

I've been writing about this seemingly epic story since Ravi was indicted not because it's directly related to my sports or entertainment law practice, but because of how close the case is to my everday life—I have two degrees from Rutgers University, and all of the events unfolded within a few miles of where I live and work, not to mention that the trial took place one block from my office. In addition, the underlying issues in the case are of national importance because of their likely effect on constitutional law, criminal procedure, and the law as it pertains to social media; moreover, the principal crime with which Dharun was charged—invasion of privacy—is a typical scenario not only in my own law practice, but for all entertainment lawyers.

So why am I writing about it again? Because the state of New Jersey (i.e. prosecutor's office) is appealing the alleged leniency of Dharun's sentence. After the jury convicted Dharun of the majority of the charges, the prosecutor asked the court to sentence him to 5–7 years in prison (remember, the maximum sentence was 10 years) (read the state's sentencing memo here). But Judge Glenn Berman sentenced Dharun to just 30 days in county lockup, of which he only had to serve 20 days. Dharun's attorneys are also appealing, but they are appealing the entire conviction, based among other things, on the prosecutor's failure to disclose key defense evidence.

I've written about the appellate process a few times (see here & here) not only because it's something with which I have a lot of experience, but also, it's one of the most misunderstood aspects of our judicial process. This case presents a unique situation within the appellate process—the state's right to appeal. Typically, the state only appeals criminal cases when the judge throws out key evidence, which results in dismissal of the charges. Prosecutors can't appeal acquittals because of the Double Jeopardy Clause. With regard to sentencing, defendants routinely appeal their sentences as being too harsh, but prosecutors rarely (almost never) appeal sentences for being too lenient, the reason being that appellate courts don't usually overturn sentences, for either side. (NB: a recent exception.) This has to do with the appellate court's limited scope of review. For what it's worth, the scope of review in New Jersey is consistent with the federal standard, and the standards held by most states, as restated recently in State v. Blackmon, 202 N.J. 283 (2010).  

Sentenc[ing] is among the most solemn and serious responsibilities of a trial court. No word formula will ever eliminate this requirement that justice be done...In exercising its authority to impose sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are fully supported by the evidence. Although there is more discretion involved in identifying mitigating factors than in addressing aggravating factors, those mitigating factors that are suggested in the record, or are called to the court's attention, ordinarily should be considered and either embraced or rejected on the record.

Appellate review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard. In conducting the review of any sentence, appellate courts always consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether the factfinder has applied correct legal principles in exercising its discretion.

What that means is that in every sentencing order, the judge must give a carefully reasoned analysis of the circumstances of the case, which he or she considered and relied upon in arriving at the sentence ordered. In Dharun's case, Judge Glenn Berman couldn't have been any clearer as to how and why he sentenced him to just 30 days (video clip includes sentencing hearing). Based on the thoroughness and lucidity of the judge's analysis, it seems highly unlikely that the Appellate Division would overturn Dharun's sentence. Anybody who says differently is either making noise, or just bitter.

Add to the equation the fact that Dharun has, now, already served his time, so sending him back to prison would essentially be like punishing him again for the same crime. Although I'm not aware of the Double Jeopardy Clause being asserted in the context of appeals of sentencing orders, I believe it could be used to Dharun's benefit in this case. Dharun had the option of waiting until his own appeal was decided before serving his term of incarceration, but he chose not to wait, and to get it over with now. Dharun said he wanted to go to jail so he could close this chapter in his life, but I wonder if he had help in arriving at his decision to turn himself in early. Given the dire consequences of the Appellate Division overturning Dharun's sentence—no matter how remote of that possibility—did Steven Altman and the rest of Dharun's legal team take the calculated risk of sending their client to jail so they could pull the rug out from under the prosecution's feet?

While that case is still getting started, a Bucks County, PA firm filed a class-action lawsuit against the Philadelphia Flyers owner, Comcast Spectacor, on behalf of all Flyers season-ticket holders. The basis of the suit is that the team misled season ticketholders by offering them tickets to all 41 regular-season home games, but then withholding tickets to the Winter Classic—which, by definition is a regular-season home game.

Comcast has chosen to label the suit as "frivolous," however, a Philadelphia small-claims court already awarded another season ticketholder $1,300 in damages, for essentially making the same allegations. An attorney from Stern & Eisenberg, who filed the class-action suit in Mercer County Superior Court argues that if the claim was so frivolous, why didn't Comcast appeal the decision? 

If the case was so frivolous, why didn't Comcast Spectacor choose to use the appeals process and fight it tooth and nail? This is a team who tried to get as much money as they could. That's their right as a business. But they angered a large part of their fan base in the process. They gave customers no choice.

This was a regular-season game, in Philadelphia, on regulation ice. It should have been a part of the 44-game package that fans paid for.

A reporter asked why Stern & Eisenberg decided to file the class-action suit in New Jersey, and although there could be a number of reasons behind that, the most compelling one has to be that New Jersey's consumer protection laws are some of the toughest in the country, and so long as one of the named plaintiffs is a resident of Mercer County, New Jersey, jurisdiction over an out-of-state defendant is proper.

Credit:

Frank Seravalli (@DNFlyers) Flyers beat writer for the Philadelphia Daily News.

Earlier:

Perpetrator of Cheesesteak Attack has Rap-sheet Longer than Richie Aprile

Rangers Fan Beaten Outside of Geno's Steaks: Is it His Own Fault for Eating a Misteak?

I'm writing this from my Chicago hotel room after just getting back from the final session at ABA TechShow® 2012, where I spent the past three days learning about, seeing, and trying the latest and greatest technology tools for practicing law. Ironically, despite the myriad gadgets and tech toys from literally all over the world, the best part of TechShow was the people. So many of us obsess over having the hippest gear, or the latest-generation iToy—we even justify the expense of it as an investment—and in doing so it's easy to lose sight of how important it is to invest in good-old-fashioned, personal relationships.

These past few days I've had the chance to talk one-on-one with folks whose books and blogs I read, whose apps I use, and with whom I tweet and email back-and-forth regularly, yet never met in person. For example, I spent time talking with Ben Schorr (@bschorr), who literally wrote the book on mastering the Microsoft Office suite in the practice of law. I talked with famed bloggers like Kevin O'Keefe (@kevinokeefe), Carolyn Elefant (@carolynelefant), and Tim Baran (@Tim_Baran). I also hung out with Mac gurus like Victor Medina (@victormedina), Ben Stevens (@themaclawyer), Ernie Svenson (@ernieattorney), and Randy Juip (@rajuip), iPad guru Tom Mighell (@TomMighell), and the original Mac Power User David Sparks a/k/a Mac Sparky. Dave also wrote the books Mac at Work and iPad at Work, which are like the Physician's Desk References to attorneys using Macs (I'd call them bibles but for fear of reprisal, especially right before Easter).

On the eve of TechShow, Matt Homann (@matthomann) of LexThink hosted a phenomenal forum in which each speaker had just 6 minutes to deliver their message about technology and the practice of law. There, I met Mark Britton (@mark_britton), CEO of Avvo.com, and Jay Shepherd (@jayshep), two incredibly dynamic speakers, both of whom are using their legal training to do great things outside the traditional practice of law. Despite how great Mark and Jay were, my personal favorite was Will Hornsby (@willhornsby), but I think that was because he mocked one of the silliest ethics rules still in effect, in New Jersey of all places.

Throughout the conference I was also speaking to guys like Brett Owens, founder and creator of Chrometa (@Chrometa), Deskspace Attorney's Nick Lightbody (@nicklightbody), and Ian O'Flaherty of Lit Software (@litsoftwareapps). Ian is the developer of one of my favorite legal tools in my arsenal—Trial Pad for iPad. I'm also anxious to try out his latest app—Transcript Pad. It's fascinating to interact with the people who actually create some of the tools I use, and to hear about how complicated it is to bring something like that to the marketplace. (Disclosure: I received a free copy of Trial Pad for purposes of writing a review.)

Although I'd met Ian before, it was great to reconnect with him, just like it was great to hang out with old friends like Andrea Cannavina a/k/a the Legal Typist, Brett Burney (@macsinlaw), Marc Matheny (@Indysoloesq), and Jack Newton (@jack_newton) and Gwynne Monahan (@econwriter5) from Clio. On Thursday night, the Clio crew threw a red-carpet bash at Chicago's Sushi Samba Rio, which was a virtual who's who in legal technology. (Disclosure: My firm uses Legal Typist's services, and I am a regular contributor to the Legal Connection eZine publication; my firm also uses Clio for practice management. I did not receive any benefit for writing this.)

So it's easy to say that I learned a lot about tech at TechShow, but thanks to these relationships, my takeaway from TechShow is so much more (human) than that. I wholly embrace technology in my life, both personal and professional. I believe that technology makes our lives richer—by increasing our efficiency, creating access to information, and enabling us to share things with friends and family we don't see often—but technology is not a substitute for human contact. Texting, tweeting, and Facebook-ing are all fantastic communication tools, but they can't replace handshakes, hugs, or sharing a beer.

Had Clementi not committed suicide but instead filed a criminal complaint against Ravi…what punishment would the state seek? Allowing public outrage/moral panic to dictate the policy behind criminal law is wrong.

After spending several days hearing snippets of the prosecution's case in State v. Ravi, I now have quite a bit more information about the case than I did when I wrote this post last April. Because I don't believe that the story is being accurately portrayed by mainstream media, I wanted to share some of the key points I've picked up on from listening to the testimony in the courtroom:

1. First of all, let me set the record straight—Dharun is not a homophobe. He's an extroverted and tech-savvy teenager, who could've either been the class clown or the class president when he attended West-Windsor Plainsboro High School North, which is in the somewhat affluent New Jersey suburb. Actually, he was co-captain of the school's Ultimate Frisbee team (I had to look this up, because I had no idea what it was).
2. Regardless of how tragic, Clementi's death was the result of a teen prank gone awry. Enough said.
3. The prosecution is using this case as a political statement, and this is also another example of prosecutors over-charging crimes. Although Dharun isn't charged with causing Clementi's death, by indicting him for hate crimes (N.J.S.A. § 2C:16-1) Dharun faces more prison time than if he'd committed manslaughter. The quote above is that of my friend and colleague Professor Doug Berman (@SLandP), who wrote those words way back in October 2010—six months before prosecutors upped the ante in the case against Dharun. (As far as I know, there's no relation between Doug and the presiding judge here, the Honorable Glenn Berman.)
4. Dharun has an amazing legal defense team. I personally witnessed attorney Steven Altman methodically dismantle the credibility of Lokesh Ojha—a key prosecution witness—Dharun's former friend, who helped him setup the webcam.
5. The prosecution would have a much weaker case if Dharun hadn't voluntarily spoken to police without his attorney present. This seems to be a recurring theme—why? Presumably, Dharun agreed to talk because he believed he'd committed no crime. 

The problem with giving a statement without your attorney present is that you don't know the law. You may say things that, while seemingly innocuous at the time, are later used against you, after prosecutors have had time to pour over your statement, hoping to find some scintilla of evidence they can use to get an indictment. Don't speak! As a friend of mine says all the time: Even a fish wouldn't get caught if he didn't open his mouth.

Almost every day a potential client calls me about a legal problem that started (or got much worse) because they didn't want to spend the money to hire an attorney. In most cases it ends up costing them a lot more to hire an attorney to clean up the mess that they created. What most people don't realize that they could actually save money if they hired or consulted with an attorney prior to making a potentially life-altering or financially significant decision.

Over the next couple weeks I will continue to watch the trial, but I'll probably wait until the end before posting on the topic again. In the meantime I'll try to share updates (and maybe pics) from the trial on Twitter (@njAtty). You also might want to follow Above the Law's Elie Mystal (@ElieNYC). I stumbled upon a number of Mystal's ABL blog posts that seem consistent with with my thoughts after watching parts of the trial (not mention incredibly witty/humerous): "Let's hope nobody you make fun of ever decides to kill themselves. Otherwise you might end up like Ravi."

As the temperature has finally dipped into the twenties in the northeast, skiers and snowboarders are starting to think about knee-deep powder, but before you head out to the slopes this season, make a quick stop at your local ski or snowboard shop, and get you and your kid properly fitted for snowsports-specific helmet.

With all that we're learning about post-concussive syndrome and sports-related brain injury in general, you can't be too safe when it comes to protecting our little ones' melons. Make sure your child is properly fitted with a snowsports helmet approved by the American Society of Testing and Materials (ASTM). Even better yet — set a good example by wearing a helmet yourself. This isn't just a suggestion, either; California, New York, and Massachusetts have mandatory helmet laws pending in their state legislatures, and in New Jersey, a mandatory helmet law is already in effect.

In April, Governor Chris Christie signed a bill that made New Jersey the first state to require kids to wear helmets on the slopes (the irony is that the only "slopes" in New Jersey are nothing but glorified sledding hills, but that's not the point). The law, which took effect on November 1, requires everyone under 18 to wear a "securely fitted protective helmet specifically designed by the manufacturer to be used while engaged in the activity of downhill skiing," and subjects parents/guardians to a fine of as much as $100 ($25 for the first offense) if their child is caught sans helmet.

Other states are sure to follow New Jersey's lead. To find out whether your state has helmet legislation in the works, or to educate yourself about brain injuries in snowsports, visit www.nsaa.org (National Ski Areas Ass'n) and LidsOnKids.org.

Photo credit: Michael Choi

Even if you believe exiled Penn State FB Coach Mike McQueary's 11th-hour revelation that he did intervene in the child rape that he says he witnessed in the locker room showers in March 2002, it still doesn't change the fact that after that incident, Jerry Sandusky continued to have access to, and continued to molest young boys for another nine years.

On Monday, I spent several hours being interviewed by Fox News, for a special report that is slated to air this weekend, and throughout the interview, the questions they kept coming back to were: "Why didn't Coach Paterno do more?" And, "Why aren't McQueary and Paterno in legal trouble over this?" As I told Fox News, I'm an attorney, not an investigator, a shrink or criminologist. I know the law, and under current Pennsylvania law, both coaches fulfilled their legal duties with regard to reporting the alleged abuse. This is because Pennsylvania is one of only a few U.S. states that don't require those who witness child abuse to report directly to police or child services.

Already, Pennsylvania legislators are taking steps to tighten the state's child-abuse-reporting statute, and there is also talk of Congress passing a stricter federal law. Currently, under the federal Cleary Act, institutions that receive federal funding are required to report all crime information to the U.S. Department of Education, but again, this does little, if anything, to stop an ongoing pattern of abuse such as the one Jerry Sandusky is alleged to have perpetrated. But regardless of whether Pennsylvania's child-abuse-reporting law was more in line with the majority of other states, are those laws tough enough to protect our children?

After giving my Fox News interview, I was curious to see what the child-abuse-reporting requirements were in my home state of New Jersey, so I looked them up, and I was a little disappointed. N.J.S.A. 9:6-8.14 makes failing to report child abuse a disorderly persons offense, which carries a maximum penalty of six months in jail, and a $1000 fine (but almost nobody gets the maximum). I'm going to go out on a limb and say that, perhaps the NJ law is appropriate, if the abuse someone failed to report was a parent who overzealously reacted to catching his teenager shoplifting—after all, when I was in school they still paddled kids in the hallways. But in the case of what McQueary is believed to have done, six months in jail and a $1000 fine isn't enough.

So the next problem with having stricter child-abuse-reporting laws, is that unless we move to a complicated, tiered approach — e.g. the way homicides are classified as murder, manslaughter, criminally negligent homicide — the laws will either be too strict or not strict enough, depending on the type of abuse. Also, these laws would need to specify exactly what conduct rises to the level of abuse that must be reported. In other words, if a school teacher sees a student with curious bruises on a regular basis, but has no direct knowledge of abuse, what is that teacher's reporting responsibility?

The McQueary incident is pretty clear cut, because he alleges that he saw Jerry Sandusky anally raping a ten-year-old boy. Turning to Joe Paterno, however, the situation is different, because from what we know now, Paterno saw nothing. So then, JoePa's next actions would have been guided by his own perception of Mike McQueary's credibility.

Joe Paterno is old school. He never had a reputation for playing fast or loose with rules. Remember Paterno's demeanor in that television promo a few years ago where all the Big 10 coaches admonished the fans to behave themselves "before, during, and after the game"? That being the case, I wonder whether the reason that JoePa didn't do more — as he wished he had done, in hindsight — is that he questioned the credibility of the young grad assistant Mike McQueary. From what I've seen of Mike McQueary, I know I do.

A lot of folks might not have even realized that Tuesday was Election Day. As an aside, I find it unfortunate that people don't take the extra few minutes to stop and vote on every election day — not just when there's a presidential race, or some other consequence of great magnitude — but I'll leave that topic alone, at least for now. Despite the fact that there weren't many high-profile races going on across the nation, there were a lot of big issues at stake in several states.

For example, Mississippi voters rejected a bill that would have changed the "meaning of life," for purposes of abortion and related issues; Ohio voters rebuked GOP Governor John Kasich's bid to rewrite state labor law, which would have substantially limited collective bargaining; and the people of New Jersey voted resoundingly to allow sports betting in the state. The only problem here is that federal law (which, of course, trumps any state's law) prohibits sports betting in all states except Nevada, Delaware, Oregon, Montana.

So why did proponents of sports betting bother to go through all the trouble of getting the referendum on the ballot? According to the Star-Ledger, State Senator Ray Lesniak (D–Union), who "spearheaded the effort for sports wagering" in NJ, plans to get another law passed authorizing the state's Casino Control Commission to issue sports betting licenses to casinos and racetracks. The idea is that once the state has such a law in place, the administration can sue the federal government to declare the federal ban on sports betting unconstitutional.

Getting an issue on the ballot isn't easy, so it seems like an awful lot of trouble to go through for something that, even if successful, depends on so many contingencies. Nonetheless, Lesniak says he's hoping to have sports betting legalized in NJ in time for the start of the 2012 NFL season. Even if it all goes smoothly, it would still be illegal to bet on college games that take place in NJ, and on NJ college teams, regardless of where they're playing.

Here's a situa ... uhhhm, I mean a circumstance where the opposite is true: Instead of paying the actor or show to showcase their product, the teeny, fratty clothing purveyor Abercrombie & Fitch has offered Mike "The Situation" Sorrentino a substantial amount of money to refrain from wearing A&F gear.

For nearly two decades, A&F has made billions by exploiting teenaged and young twenty-somethings' six-pack abs, which also happens to be Sorrentino's self-proclaimed calling card. (He actually tried to get trademark protection for his abs, but fortunately the USPTO thought better or it.)

I disagree with those who are quick to call this a mere publicity stunt for A&F. This was a strategic decision by Mike Jeffries (A&F's CEO) to dissociate from the raunchy, douchebag image perpetuated by Sorrentino and the reality show. It's just Jeffries' eccentric way of policing the Abercrombie brand.

Policing your brand goes hand-in-hand with trademark protection, because those who fail to police their brand/mark end up losing it altogether. Most of us are too young to remember that aspirin was once a brand-name drug.

Sorrentino's people haven't said whether they're considering A&F's offer, but regardless of whether he takes the deal, doesn't this set a dangerous precedent for the future? Is Glock going to pay Plaxico Burress to switch to Smith & Wesson? Are the Yankees gonna pay wannabe-thug rappers to don Red Sox lids instead? Instead of paying Sorrentino not to wear A&F clothes, why not send him a cease and desist letter, on the basis that he is disparaging their brand? Even if Abercrombie were to lose that fight in court, it would send a strong message that they do not condone or endorse the lifestyle portrayed by Sorrentino and his goombahs.

Here's a little background on the subject matter involved in the infringement claim. In the beginning of the world wide web, developers and code writers figured out early on that they could trick search engines into driving traffic to their sites by embedding their competitors' names and keywords in the metadata of their own websites. This practice may have been effective in the short run, but the search engines quickly figured out what was happening, and modified their search algorithms to ignore the metadata, which was easily manipulated, and to instead focus on the real (i.e., visible) content on webpages.

But when Google sells its AdWords advertisements, it effectively allows whatever company is the highest bidder to jump to the top of Google's search list whenever a websurfer searches for certain (purchased) key words. (For more on how Google AdWords works, see the Frank & Catalina article.)

What the latest appeals court decision does is place different emphases on the factors that courts use to determine whether any infringement has occurred:

Given the nature of the alleged infringement here, the most relevant factors to the analysis of the likelihood of confusion are: (1) the strength of the mark; (2) the evidence of actual confusion; (3) the type of goods and degree of care likely to be exercised by the purchaser; and (4) the labeling and appearance of the advertisements and the surrounding context on the screen displaying the results page.

Although the court's decision appears to draw a line in the sand that is more liberal than what's been the rule, it's probably too soon to call the proverbial floodgates open. First, this ruling is just from one circuit court of appeals; until the U.S. Supreme Court rules on the issue, one way or another, other circuits are free to distinguish (or even disregard) the Ninth Circuit's holding. Something else to keep in mind—this was not a trial on the issue of trademark infringement; the only issue before the Ninth Circuit was whether it was appropriate to grant a preliminary injunction, which places a higher burden on the aggrieved party than that in a full trial.

A Middlesex County grand jury returned a 15-count indictment against nineteen-year-old Dharun Ravi, the former roommate of the Rutgers music student who committed suicide last September.

Ravi was already facing criminal invasion of privacy charges, for secretly recording his roommate, eighteen-year-old Tyler Clementi, having a homosexual encounter using a webcam. Ravi now faces additional charges of bias, three counts evidence tampering, and one count witness tampering, based on the prosecutor's allegations that Ravi purposely mislead investigators and witnesses throughout the investigation, and that he deleted an incriminating Twitter post.

Assuming that Ravi is a homophobe, which seems readily apparent, isn't it ironic—what's likely to happen to him if he's convicted? I haven't seen the actual indictment, so I can't determine whether any of the charges have mandatory prison sentences. If I do find a copy of the indictment, I'll post it here later, with comments.

First Amendment proponents are applauding yesterday's NJ Supreme Court decision, which dealt an apparent blow to privacy advocates by holding that the fact that a conviction was expunged does not negate its truth for the purposes of using it as a defense to defamation. As I explained here, defamation claims are not common because they are difficult to win. There are four elements of the claim, and even if you can prove all four elements, the defendant can still escape liability by showing that the allegedly defamatory statements were true. In attorney-speak, we say: truth is a complete, or absolute defense to defamation. That sounds pretty straight-forward, right? After all, doesn't everyone know the difference between the truth and a lie? As more than one of our recent U.S. Presidents can attest, sometimes truth isn't so black and white.

Expungement is the process of sealing the record of a criminal conviction, usually for first-time offenders. Expungement is not a constitutional right; it's created by statute, under state law. In fact, I am aware of only about a dozen states that allow it. And in each state that does allow it, different rules and requirements apply. Also, each state treats the effect of an expungement differently. For example, some states, like Washington, treat an expungement as though the crime never occurred. If you get an expungement in Washington State, state law gives you the right to tell anyone that you were not convicted of the crime in question. Similarly, for most purposes, the state of Ohio treats an expunged conviction as though it never happened, however, in some limited circumstances, the record of conviction may be later accessed by courts or law enforcement. Needless to say, not every crime is eligible to expungement, and not every convict is entitled to one. Generally speaking, serious crimes, violent crimes, and sex crimes cannot be expunged.

In the case decided yesterday by the NJ Supreme Court, the plaintiff (known only as G.D.) sued former state senator Bernard Kenny and the Hudson County Democratic Organization for defamation, based on their printing of campaign flyers stating that the plaintiff was a convicted drug dealer. G.D. was in fact convicted of drug possession back in 1993, and he served about 8 months in prison out of a five-year sentence. But G.D.'s conviction was expunged in 2006.

Justice Barry T. Albin delivered the court's opinion:

The relief provided by the expungement statute, however, does not include the wholesale rewriting of history. A person convicted of a first-time crime may petition for expungement of all records and information” relating to the conviction after the passage of ten years from the date of the conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later. (quoting N.J.S.A. 2C:52-2(a)). A court order of expungement does not result in the destruction of criminal records.

For anyone keeping score, Justice Albin is a democrat (McGreevey appointee); he also happens to be a former criminal law attorney, past president of the New Jersey Association of Criminal Defense Lawyers, and served on the court's Criminal Practice Committee from 1987 to 1992. He continued to say that:

Common sense tells us that an arrest or conviction may become general knowledge within a community and that people will not banish from their memories stored knowledge even if they become aware of an expungement order. And long before the entry of an expungement order, information about an arrest and conviction may be compiled by data aggregators and disseminated to companies interested in conducting background checks.

Although the court's ruling isn't likely to impact criminal law much, if even at all, it will serve as one more potential hurdle that a plaintiff must clear to successfully make a case for defamation.

Download pdf of the NJ Supreme Court's decision in G.D. v. Kenny, et al., No. A-85-09 (Jan. 31, 2011).

Yesterday, controversial GOP governor Chris Christie commuted the seven-year prison sentence of Brian Aitken, a 27-year-old Internet entrepreneur who was arrested, prosecuted, and convicted of state weapons charges after police found 2 handguns in the trunk of his vehicle. (Download pdf of the order.) Police stopped Aitken because his mother, who lives in Burlington County, called them after she became worried that he might harm himself (details & full story from ABC news).

Aitken purchased the guns lawfully, at a sporting goods expo in Denver, CO in 2007, after undergoing an FBI background check. In  before he moved back to NJ, he contacted the state police to find out what his responsibilities were in bringing his firearms with him. They advised him to transport the guns unloaded, and locked, in the trunk of his vehicle.

Prosecutors charged Aitken under NJ's current gun laws, which essentially place as much culpability on him as if he were using those guns to "stick up a 7-Eleven," says attorney Mike Carroll, a NJ state assemblyman. Indeed, N.J.S.A. 2C:39-5(b) makes it a felony to possess any handgun—even a pellet gun. Although there are some very limited exceptions relating to handgun transportation, Carroll said that Aitken was "almost certainly guilty of what he is accused of doing. Technically speaking…you can’t even stop for coffee if you’re transporting guns."

The fact that Brian Aitken will be home for X'mas doesn't change the reality that NJ's gun laws are Draconian to say the least—in fact, not much less restrictive than the law struck down by the U.S. Supreme Court in 2008, in District of Columbia v. Heller (Lyle Denniston's SCOTUSblog analysis; pdf file of the Court's opinion.) Many states have either amended their gun laws since Heller, or currently have legislation pending, so given the exposure of Aitken's case and the obvious miscarriage of justice, one would hope that New Jersey gets its act together in this regard. Eugene Volokh also reported here on a related civil suit in Illinois, which if successful, could lay the foundation for future Brian Aitkens to challenge onerous state gun laws.

Until they do, however, it's best to leave your guns at home (you too, professional athletes). I know I will.

‡ Note: I borrowed the title for this post from Doug Berman, one of my former law professors, who writes an acclaimed blog on the federal sentencing guidelines.

The domain name, p2p.com, was estimatedly valued at as much as $200,000 at the time that 23-year-old Daniel Goncalves hacked into the popular domain registrar goaddy.com, and then transferred its registration to his own GoDaddy account. Go Daddy records show that the same IP address was used to transfer the stolen domain as was used to log into Goncalves's Go Daddy account. After waiting 60 days from the date of the transfer, per ICANN (Internet Corporation for Assigned Names and Number) rules, Goncalves transferred the domain to another registrar, and ultimately sold it to Mark Madsen, a forward for the Los Angeles Clippers. Madsen had no idea that the domain was stolen. (Full story from newerseynewsroom.com.)

Although 5 years sounds like a long time to go to prison for stealing a "name," Goncalves's conduct in this case was particularly egregious (not to mention stupid). Before striking the plea deal with prosecutors, Goncalves was potentially facing 10 years in prison. What's even more incredible is the fact that Goncalves not only used (presumably) his own computer to complete the transaction, but that it took investigators 3 years to catch him!

Even though the domain was reportedly returned to its rightful owners (a "who is" search only revealed the current registrar, Moniker Online Services, Inc.), it appears that the domain/site remains dormant as of this date.