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Sunday, March 31, 2002

Naked Justice Beds is back, writing this month about civic beautification: "If someone with no money is 'judgment-proof,' I think it can be safely said that someone who constructs sculptures of dancing neon penises in top hats is 'emotional distress-proof.'"

Look Before You SLAPP In another SLAPP (Strategic Lawsuits Against Public Participation) case in California this week, the anti-SLAPP statute was applied to give litigants and lawyers protection against malicious prosecution claims. In Jarrow Formulas, Inc. v. LaMarche (B146708, 3/25/02), Sandra LaMarche, a graphic artist, had a dispute with her client, a vitamin manufacturer, over the ownership of artwork created by LaMarche for the company. According to declarations filed in the case, the owner of Jarrow behaved outrageously, attempting to sabotage LaMarche's relationships with other clients and hurling profanities like rice at a spring wedding. Jarrow sued LaMarche about the artwork ownership issue, and LaMarche ultimately won. During the case, however, LaMarche and her attorney filed a cross-complaint against Jarrow for interfering in her other business relationships, which she lost. Jarrow then sued LaMarche and her attorney for malicious prosecution, arising from the unsuccessful cross-complaint. The Court of Appeal found the malicious prosecution case was barred by California's anti-SLAPP statute, and reversed the trial court on this point. All actions in filing and advocating the cross-complaint were found to be protected exercises of First Amendment rights, and the malicious prosecution claim was found to be a prohibited attempt to chill those rights. LaMarche's cross-complaint was an exercise of her right to petition, and her lawyer's written and oral advocacy were protected speech. The malicious prosecution claim thus was stricken, and LaMarche and her attorney awarded their costs and attorneys' fees.

Saturday, March 30, 2002

Answering Will (resurrected from 3/29) I owe Will Cox of the Peanut Gallery an answer to a question about the gene patent issues I blogged awhile back. Will asked if the patent is on the gene itself (the gene qua gene), or on the process of isolating the gene. The answer is, both things are uniquely patentable in their own right. "Utility patents" may be granted to someone who invents a new and useful process or discovers new and useful "compositions of matters" (or both). Thus, according to the USPTO's guidelines, a gene patent is possible once you identify "the compound" - the gene itself - and a use for the compound. If someone then develops "new an non-obvious methods of using the patented compound" - the gene - they can apply for a separate process patent for that use, notwithstanding that someone already holds the patent for the gene.

Blogger weirdness Don't know why my 3/28 and 3/30 posts below just got combined, but... they seem to want to stay that way. Anyway, I was trying to point out Gary's due diligence about Thomas Pacheco, and concur that it would be nice if he beat out breakfast-cereal quizzes on Daypop (I think Jeneane might think so too). Guess I'll have to re-post my item from yesterday, which seems to have been eaten by Blogger.

Good Linkage Thanks, Kevin, for blogging Thomas Pacheco on RGE. Proceeds from Thomas's art sales go to help him and potentially many others fight cancer, and his pieces make excellent "Blogstickers." -Later: thanks for the 0 comments | link

Thursday, March 28, 2002

'Morning, Coffee Juicy morsels from Sabrina Pacifici of llrx: ~The Google Blog: Two great tastes that taste great together. Lists top stories from news organizations, by category, and lets you search them. In Beta. ~Business Week takes on Hollings, in commentary by Alex Salkever: "The proposed cure is far worse than the disease...Yes, the law does have a provision for Fair Use, the legal precedent that awards consumers some rights to replicate copyrighted materials, either for academic reasons or for personal use. But Fair Use protections in the bill remain vague. At the very least, they would have to be toughened." ~Tim Berners-Lee on "The Semantic Web:" "Suppose you're on the Web and find a conference you want to go to...You would prefer, when you see the notice of an interesting conference, to just say: "O.K., I want to go," and everything will get taken care of, automatically. All the entries will pop into your agenda, your address book, your GPS. Then you'll get pinged by your agenda when it's time to leave, because it knows from your GPS how long it will take to drive there. And, in addition, it will block out the driving time on your schedule and alert you if you try to make a conflicting appointment." ~California Supreme Court will review Intel spam trespass case: The Court will examine whether former Intel engineer Kourosh Kenneth Hamidi committed trespass by sending tens of thousands of emails to Intel workers.

Wednesday, March 27, 2002

Top Ten Signs Of A Microcontent Obsession 1. For news, you read doc,, llrx and writ instead of the morning paper. 2. It has crossed your mind to keep a blog about things to blog. 3. You know what fish do when they're late. 4. You can't define a fucknozzle, but you know it when you see it. 5. Recent credit card receipts show at least three purchases from CafePress. 6. You can name at least six species of blogware. 7. You can name at least two species of blog-fowl. 8. You know several pets who blog or encourage people to. 9. You have formed opinions about political controversies you never would have heard of. 10. You know how to make Notepad wrap text.

Light Reading Documents filed in the Enron bankruptcy case are available here. (Thanks, llrx, for the link.)

Tuesday, March 26, 2002

Word's Out I enjoyed this article that plugs blogtank. Notable quote: "The biggest jump in the blogger population has arguably been among people who aren't techies, like early bloggers, but experts in other fields. They've harnessed new, easy-to-use blog-publishing tools to espouse their passions."

Blawg Additions Several folks have joined the blawg roll. Ernie Svenson ("Ernie the Attorney") showed up in Dave Winer's blog yesterday, and is a Louisiana attorney who writes on a broad range of topics. William Altreuter has a firm in Buffalo, New York, and writes about life as a litigator ("A charming morning in court today..."). The following folks are FOD (Friends Of Dodd), and maintain interesting blogs of their own: Jeffrey Cross (Kentucky lawyer and avid cyclist), Michael Adams (Harvard law grad pursuing a clerkship with a federal judge), Michael's wife Sarah Meuller (starting law school at Brandeis in the fall), and Rebecca Terhune (law student). Give 'em a read. -Later: Ernie's not in So Cal, as previously blogged, but down south hangin' round the other Loyola.

Monday, March 25, 2002

Items shipped on March 24, 2002:   Delivery estimate: March 28-April 3 1 package via USPS.

Comments submitted to the Judiciary Committee ...about the CBDTPA are being posted here. Later: Although the comments form (thanks, Frank) says submissions are subject to review before posting, there is very little delay if any; mine went up immediately.

Orwellian Doc captures in a nutshell why the Hollings bill won't cut it, in his Linux Journal article Biting The Hand That Beats You: "Napster and its successors are the listeners' workaround of the failed radio industry...Other workarounds are bound to follow, over and over, until the entertainment industry starts serving fully empowered customers or gets replaced by something that will. Protective legislation will only make the process happen faster." I cannot chase from my head the vision of future citizens sequestering away, hoarding and constructing their own Rube Goldberg versions of technology circa 1998-2002, which will be vastly preferable to the castrated offerings on the consumer market. Two steps forward, ten steps back. Later: And Dan Gillmor makes the same point: "Policy is not going to stop technology from evolving. It can only make criminals of more and more people who are going to use it no matter what her [Hilary Rosen's] clients say."

Saturday, March 23, 2002

A Moment This afternoon, 4:30 yoga, room not as hot as usual, 98, 99 degrees f. instead of the standard 102, 103. Uncrowded class, lots of room to maneuver and breathe, blinds open to show post-rain cloud sculptures. Husband and wife first-timers behind me, both struggling (he more than she) but troopers. Forty-five minutes in, the floor series begins and they get to take their first shavasana. Lying on the floor like bricks in a wall, his head to her feet. The guy reaches up and draws mischievous patterns on her insteps. Without a flinch or a giggle, she lies there and takes it, a slow smile spreading over her eye-shuttered face, until it's time to begin the next posture.

Friday, March 22, 2002

Still on the Loose Here's Papa (not Hemingway, although the confusion is understandable), reading Bag and Baggage with a few of his favorite things to keep him company. Somehow he transported these to the Inn to take this without getting arrested; they're a little more casual about their weaponry in his neck of the woods.

And the little Casinos shall lead them... This was a long time coming: on Wednesday the Ninth Circuit endorsed service of process by email once court approval has been obtained, in a case brought by the RIO hotel and casino in Las Vegas. This means that if someone is trying to evade service of a lawsuit and you have their email address, you can legitimately accomplish service by email. The Ninth Circuit found this to be reasonable and in keeping with Consitutional due process: "As noted by the court in New England Merchants [v. Iran Power Gen. & Trans. Co., 495 F. Supp. 73, 80 (S.D.N.Y. 1980)], in granting permission to effect service of process by process via telex on Iranian defendants: 'Courts...cannot be blind to changes and advances in technology. No longer do we live in a world where communications are conducted solely by mail carried by fast sailing clipper...ships. Electronic communication via satellite can and does provide instantaneous transmission of notice and information. No longer must process be mailed to a defendant's door when he can receive complete notice at an electronic terminal inside his very office, even when his door is steel and bolted shut.' 495 F. Supp. at 81. We wholeheartedly agree." Noting that there remain some difficulties in confirming receipt of emails and their attachments, the court stressed that for the time being the validity of email service should be treated on a case-by-case basis: "[W]e leave it to the discretion of the district court to balance the limitations of email service against its benefits in any particular case." Sign of the week that the judicial system is joining the 21st century. (Of course by that time it may be the 22nd.)

Thursday, March 21, 2002

Pelican Bay Verdict's in. I would say this should cheer Fang up, but finding anything cheerful in this case is like finding a nickel in the desert - probably impossible and not worth the effort. I'd stick with Slipper. (Thanks to Pongo for the eagle-eye on the news.)

Offerings We simply can't have Fang sulking. Perhaps these will appease:
aaahhh Wroo, Wroo!!

Options So, which is the blogtank? (I like the yoga one.)

Wednesday, March 20, 2002

Dog Bloggerel I wonder what Fang, Pongo and Mathilda think about fifteen years to life (for their owners) if they decide to get ornery? That's a long time between kibblings.

Blog Doggerel Preserve us, Mel's in the house, poetizing in my comments. Without intending it, he's given me the best birthday gift of all: being yanked back to age fourteen and seized by the need to bleat, "Aw, Daaaaad!!" He also sent a fantastic photo that will be blogged as soon as it's emailed. Not to mention - a box full of t-shirts proclaiming: "Doc Searls Linked My Blog." Please let me know if I can send you one. Please. Mel, you need a blog. You know that. I'm going to have to bring out the big guns and sic Elaine on you. I think she's in Berkeley, and would no doubt love to visit the Inn and lower the blogging boom. Now I have a birthday gift for the rest of you (and Mel after Kalilily's trip): did you know that Google has a free "search the web/search your site" tool? I put it down on the lower forty here at B&B. You can even customize the results page a bit for the "search your site" feature. They just keep giving, don't they?

Tuesday, March 19, 2002

Ok, now tell us something about yourself. (And rethink the animation.) This fellow's getting coverage in California's legal news for his novel approach to job hunting: posting his resume online and linking to it from discussion groups. Thanks for the info, great creds, now howzabout a voice? I can tell you based on what I know from their respective sites I might be tempted to recommend Larry Staton instead, and, ah, he hasn't even started law school...

Monday, March 18, 2002

Blawg Addition: Katie Stahl, who remains in the wakeful minority of the student body at The University Of Houston Law Center by blogging, organizes women law students with a blog, posts course outlines on her site (truly revolutionary to the likes of me - "why, when I was in law school we didn't even have email!"), plans to go to Ireland (mandatory for future lawyers, to study the fine art of Blarney), and is a poet to boot. Jeneane or Elaine, I sense a Blog Sisters invite coming on...

It's All About Flexibility Ah, the multi-faceted Mac (thanks to Professor Sorkin for the link).

Saturday, March 16, 2002

Takin' It Easy It's a slow, meandering weekend around here. Frank's been exploring Radio and has some valuable insights. Maybe Blogger's not all bad. Fishrush, as ever, has his finger (fin?) on the pulse of the latest sea change. "Occupied with notions of infinity" seems to be a recurring theme for us bipeds. Gary is fending off some messy shareholder derivative proceedings (details of the legal defense fund forthcoming). I mostly have been messing around with iMovie, turning a Vegas weekend into a docudrama - which it was before the software got hold of it, truth be told.

Friday, March 15, 2002

Posting Satan The Today Show this morning reports that the Mayor of Inglis, Florida has officially banished Satan by sinking wooden posts that bear the subterranean opposite of a welcome mat. I'm trying it with swizzle sticks.

Thursday, March 14, 2002

Curses! Gary's on to us, but never fear - our resources are vast. Lock down your comments and de-list your email.

Wednesday, March 13, 2002

Blog You Here, Sue Me There Another case currently in the appellate pipeline in California will decide whether net users in other states have to defend claims in California that involve only out-of-state conduct. On December 12, 2001, the California Supreme Court granted review in Pavlovich v. Superior Court, which was decided last August. The issue at stake is whether a defendant in Texas (open-source enthusiast Matthew Pavlovich) who posted the DeCSS code on his site should have to defend a suit brought in California by the DVD CCA. Pavlovich argued to the trial court and Court of Appeal that his actions in Texas did not give California jurisdiction to hear the DVD CCA's claims against him; if the DVD CCA wanted to pursue him it would have to do so where he lived and where the conduct took place. The Court of Appeal disagreed, finding that the claims could proceed in California because Pavlovich knew or should have known that his conduct could harm industries with a strong presence in California: "Because Pavlovich knew that California is commonly known as the center of the movie industry, and knew that Silicon Valley, California, is one of the top three technology 'hot spots' in the country, he knew, or should have known, that the DVD republishing and distribution activities he was illegally doing and allowing to be done through use of his Web site, while benefitting him, were injuriously affecting the motion picture and computer industries in California. The question is whether Pavlovich's lack of physical and personal presence in California incapacitates California courts from jurisdictionally reaching him.... We hold it does not." EFF quotes Pavlovich's lawyer as saying this means "that movie industry moguls can drag web publishers from anywhere in the world to defend themselves here in California." He's correct, but of course it goes further than that. If the Supreme Court affirms this decision, any party who alleges harm in California conceivably can compel web publishers from other states to defend claims in a California court. The appellate court did not consider this too great a burden, reasoning that for those who "purposely derive benefit" from intrastate activities, it is not unfair - given the benefits of "modern trasportation and communications" - to subject them to litigation in another state. So, until the California Supreme Court decides how this will come out, all you bloggers had better be extra nice to us Californians: lots of links please, and let's keep the libelous epithets to a dull roar, shall we? That is, unless you're hankering for an extended "vacation" here while we iron out our legal differences.

Tuesday, March 12, 2002

SLAPP-ing Back Doc's blogging today from SXSW about SLAPP suits and other fauna, including fake corporate blogs - "Like your dad trying to buy pot," as an audience member pithily put it. As for SLAPP litigation - "Strategic Lawsuits Against Public Participation" - California, Utah, Oregon and New Mexico all have enacted "Anti-SLAPP" statutes intended to protect citizens from lawsuits resulting from any act in furtherance of constitutional rights of petition or free speech. As the California legislature noted when enacting its Anti-SLAPP provision (scroll down to CCP Section 425.16), "There has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition . . . The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly." Anti-SLAPP statutes protect those who engage in protected activities, which include (in CA) "any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest," and other conduct that furthers the rights of speech and petition "in connection with a public issue or an issue of public interest." Federal courts also will enforce state anti-SLAPP laws where applicable, and in general protect activities under the First Amendment. The California Anti-SLAPP Project, and obviously the EFF, are excellent resources for those who may find themselves on the wrong end of SLAPP litigation.
Current Anti-SLAPP Issues In California The California Supreme Court has at least two Anti-SLAPP cases pending. In Wilson v. Parker, Covert & Chidester, 87 Cal.App.4th 1337 (2001), review granted 6/20/01 (S097444), the Court will consider whether a defendant's failure to obtain a dismissal under the Anti-SLAPP statute also helps shield the plaintiff from liability for malicious prosecution. And, in Equilon Enterprises v. Consumer Cause, 85 Cal.App.4th 654 (2001), review granted 4/11/01 (S094877), the Court will decide whether a SLAPP defendant must show the lawsuit was brought with the intent to chill the defendant's exercise of free speech or petition, in order to obtain a dismissal. In other words, in Equilon the Court will address whether suits should be dismissed if they have a chilling effect - regardless of what the defendant may be able to show about the plaintiff's intent. Your tax dollars at work, Doc. Blog on!

Monday, March 11, 2002

Temperature's A-Risin' The Chilling Effects Clearinghouse provides lots of answers for those interested in knowing and protecting their online rights. A joint project of the EFF and clinics from the Harvard, Stanford, Boalt Hall (Berkeley) and University of San Francisco law schools, this site primarily addresses copyright issues surrounding all kinds of online activity, including linking, protest, parody and criticism, and everybody's favorite: the DMCA. There's also a good trademark section. I'm glad to see my alma mater participating in such an endeavor, and also operating its Samuelson Law, Technology and Public Policy Clinic, which helps clients in the no-man's-land between public interest and intellectual property rights. -Also on the side of the good guys: the Stanford Law School Center For Internet and Society, which defends satirist Zack Exley against trademark dilution claims from CNN. (Figured some of you - now, I'm not naming names - might want to save the link.)

For The Blogger's Bookshelf Yesterday the LA Times reviewed a new book, Atonement, that captures a common writer/diarist's dilemma at any age: "Trapped between the urge to write a simple diary account of her day's experiences and the ambition to make something greater of them that would be polished, self-contained and obscure, she sat for many minutes frowning at her sheet of paper and its infantile quotation and did not write another word. Actions she thought she could describe well enough, and she had the hang of dialogue. She could do the woods in winter, and the grimness of a castle wall. But how to do feelings? All very well to write she felt sad, or describe what a sad person might do, but what of sadness itself, how was that put across so it could be felt in all its lowering immediacy? Even harder was the threat, or the confusion of feeling contradictory things. Pen in hand, she stared across the room toward her hard-faced dolls, the estranged companions of a childhood she considered closed. It was a chilly sensation, growing up." The reviewer (Daphne Merkin) called the book "the Great British Novel," and summed up: "In the seriousness of its intentions and the dazzle of its language, it made me starry-eyed all over again on behalf of literature's humanizing possibilities." Sounds like a worthy supplement to business as usual. As for things conveyed in all their lowering immediacy, this is why Allied and Kalilily are mandatory reading. In their unique ways, these ladies make literature's humanizing possibilities a reality every day.

Saturday, March 09, 2002

Trying out BlogSkins. Kind of fun. They promise eventually to be able to integrate existing links and other template customizations, which should go a long way toward getting us outside more often.

Thursday, March 07, 2002

"Blawg" addition: LawMeme, a blog maintained by Yale Law School students, provides a wealth of current legal news and commentary.

Wednesday, March 06, 2002

Wow. Houston, we have Mac. And they say the new car smell is good. So far (about ten minutes into my life as a Mac user) I am dazzled and amazed. The setup on these things is effortless. OSX immediately recognized and used my less-than-conventional ISDN connection, which I was pretty sure would take futzing about with. I'm off to connect more peripherals -

Finally had to say goodnight to the iMac, but it was a sorrowful parting. Apple's got this down. Even the packing and packaging for these things is clean, simple, effective and visually pleasing. I can't get it to see a Belkin 4-port (F1U200) switch and the USB peripherals attached to it, but the "genius" at the Mac store told me that probably would happen (I am not being facetious - that was his Title). Ah well, gotta have something to troubleshoot. Oh, and the Blogger interface loses some editing buttons in the Mac version of IE, for some reason. Otherwise, all systems G-O.

Tuesday, March 05, 2002

What is it? And Blogging the Law. Computing tool, or bobbing bird toy? Whatever, it's still in the box at the moment. Will let you know if it actually fires up.

On a different note, I seem to be one of the only "out" lawyer/bloggers in the State of California. Let me break that down - I mean lawyers who admit to blogging, and bloggers who admit to lawyering. This is surprising, since California has one of the highest per capita lawyer populations in the U.S. The lawyer-blogging divide won't last long, and I'm afraid I may be speeding its demise (before I tell you the next part, please move away from any blunt instruments - thanks). I'm nearly done with an article on how blogging could transform legal institutions, for the Daily Journal (California's legal newspaper). This is bound to get more lawyers - and maybe judges - blogging, and while you are free to disagree I tend to think this is a good thing, entirely in keeping with Cluetrain-y oaths and visions. As demonstrable evidence, I submit some new "Blawg" additions to the Menage. First, there's Law and Everything Else, an informative, comprehensive and clever blog maintained by Burt Hanson (who seems to hail from beyond the U.S., based on his spelling preferences and global focus?). In light of our Kelly v. Arriba discussions, Frank will appreciate his link to an article about the Ninth Circuit's record of Supreme Court reversals, and the old joke: "Judge, I'm appealing a ruling from the 9th Circuit, but I have other reasons as well." (Fang will also appreciate Mathilda.) Second, there's Instapundit, the blog of law professor and music enthusiast Glenn Reynolds, who tags himself (via PRAVDA) as "The New York Times Of Bloggers." Glenn's example is particularly powerful. Legal institutions - courts, law schools, large firms - traditionally have been locked down and inaccessible. The University of Tennesee's law school now is less so, thanks to Professor Glenn: "For me, it's an enjoyable way to get thoughts out that don't merit a 20,000-word law review article but that I think are interesting. And it offers immediate feedback -- and I mean immediate. Sometimes e-mails come in within 30 seconds of a post going live." (From the Minneapolis Star Tribune article noted by Doc yesterday.) Links from Glenn's blog include Overlawyered, a critical look at the legal system's myriad excesses and gaffes. Finally, there's Organized Anarchy, a blog maintained by solo-practitioner Chuck Hartley in San Diego. (Chuck also suffers from the widespread blogger-canine obsession - not sure what all this means, but Rand no doubt has a study in the works.) So, beware - the lawyers are here and more are coming. There is solace in the fact that "I can get you One Million Dollars!" will not make for particularly linkable blog-fodder. - Update: another blogging law professor, David E. Sorkin, of the John Marshall Law School in Chicago. Also Larry Staton, Jr., who fuses "law, economics and technology" with a firm grasp on all three, and Kentucky lawyer moved left-coast C. Dodd Harris, IV.

Monday, March 04, 2002

Justice Bedsworth's monthly column has been updated. He's also over there in the Menage, although his column - sadly - is not a blog. I mean to speak with him about this, honest, but am working on how to broach it. In these times of heightened security, an opening conversational salvo with a Justice of the Court of Appeal that goes "Hi Bill, we really need to discuss blogging" is likely to earn you a shopping spree at the orange jumpsuit emporium. In any event, this month Beds dissects the Kerkorian child support case. I particularly enjoyed his unique blow-by-blow of how the couple reached their litigatory impasse, which includes observations like, "She had to agree to divorce him within a month of the marriage. Sounds like a bad Ally McBeal episode, doesn't it? Ally McBeal, hell, it sounds like something the Brothers Grimm would have come up with if mescaline had been available in 18th century Germany." Oh, it's good. As usual. If checking in on Beds regularly doesn't start to convince you that the courts might be in good hands after all, nothing will. Meanwhile, back at the law firm, Kiefer Sutherland is in the house - or on the plaza, actually - filming his show 24, which despite good notices I am unable to warm up to. The plot seems as though it might have made an ok X-Files episode - but just one, not a whole season. The show must go on though, that's the thing about LA. If you can't land yourself at least one TV or movie spot a week, you're simply not trying. There is a little-known city ordinance that requires the number of active production crews to equal the number of Starbucks franchises on any given day. You can look it up.

Saturday, March 02, 2002

Just put The Bombast Transcripts up on a shelf, having finished the last chapters/sends/screeds on a sun-kissed morrning with a three-piece combo playing backup: birdsong, motorized garden apparatus, and (faintly - an aural afterimage) surf washing sand.

Red Shift Blues looks at such mornings, such birds, such lawns, and discerns "a dark and dangerous path;" "More dimensions. Greater life." Here, it is easy to believe vampires sprang anew from the imagination of Joss Wheedon. But the wisdom of Locke's advice to observe what is latched to one's own throat somehow does not diminish the sun and birds and surf; it sharpens them.

Friday, March 01, 2002

Creative Commons LicenseUnless otherwise expressly stated, all original material of whatever nature created by Denise M. Howell and included in the Bag and Baggage weblog and any related pages, including the weblog's archives, is licensed under a Creative Commons License.