Welcome back to Legal Geek. This week, we look into the legitimacy of those who claim to be Free Inhabitants in the US in an effort to avoid government actions, based on a suggestion from listeners James and Robert.
https://archive.org/details/LegalGeekEp56
A couple of videos have recently gone viral regarding so-called Free Inhabitants, which are people living in the U.S. who believe they are not required to follow U.S. laws because they do not identify as American or state citizens. Tracking these videos back to the hub of the small movement at freeinhabitant.info, you will see quite the show of legal theories and advice for the prospective Free Inhabitant. But do these legal theories have any merit?
Let's start with the viral video of the young lady refusing to leave her car following an arrest by a police officer. During her arguments with the cop, she cites the Articles of Confederation. Which would be great to rely on if it hadn't been superseded by the U.S. Constitution back in the 1700's. Immediately on its face, her claims, which would be better presented in a court of law rather than to a police officer, simply have no merit in today's America, or even that America of the 1800's.
Perhaps she's not the best representative of this cause, however. Going back to the Free Inhabitant website, there are all kinds of tips and lists for giving notice to employers and the U.S. government that you decline government benefits of any kind so you do not have to pay taxes, how to avoid having a driver's license or license plates, and how to avoid admitting use of a social security number or any such benefits. But there's little behind this advice beyond cites to old English common law and again, the Articles of Confederation.
It's also a kind of variation of another similar movement against following the laws called the Sovereign Citizen movement, similar to a Freeman of the Land movement in Canada and Britain. These movements have also pointed to the 14th Amendment to the Constitution, which conferred benefits of U.S. citizenship on former slaves in exchange for various freedoms, as implicitly creating two types of citizens: U.S. citizens subject to the federal government and state citizens subject to common law only.
But while it's a great ideal to try and remove consent to federal jurisdiction by not using zip codes, voter registrations, birth certificates, marriage licenses, car registrations, etc., the reality is that the federal government inherently provides other benefits like protection and safety of the borders for everyone within the U.S., which cannot just be disclaimed. If you want to claim sovereignty, you need to really go buy an island and secede from whatever country it was in originally. Then you will really be on your own and not just a protestor of laws that are disliked.
These movements have fought in court and there are over 100 decisions that have denied the legitimacy of these claims. If there were any merit to Free Inhabitants, some smart trial attorney likely would have figured out the right legal theory by now.
The Bottom Line: thinking outside the box is not a bad thing, but if you actually want to be a sovereign citizen or free of government, you need to leave or secede from a country like the USA.
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Wednesday, October 28, 2015
Thursday, October 22, 2015
Legal Geek No. 55: Google Books Survives with Fair Use at Appeals Court
Welcome back to Legal Geek. This week, we return to the expanding field of copyright fair use with a review of the Second Circuit Court of Appeals decision protecting Google Books from copyright infringement liability.
https://archive.org/details/LegalGeekEp55
Late last week, a three-judge panel in a New York federal court of appeals dismissed a lawsuit brought by an authors' guild against Google, claiming that the copying and digital storage of copyrighted books and other works in the Google Books program was copyright infringement. Just like the lower courts, the Appeals Court determined that Google Books is fair use under copyright law.
The current era of copyright law in the courts is one of reducing rights, as fair use continues to be more and more expansively interpreted. This is possible because fair use is a four factor balancing test which is a very gray area and always fact based. Judges can sometimes bend the facts to fit the factors in the way necessary to end up at a desired result, and some powerful lobbies like the Electronic Frontier Foundation are working to keep the ball rolling towards bigger fair use and less useable copyright enforcement rights.
Returning to the Google Books case, the judges ruled that Google's unauthorized digitizing and copying of the copyrighted works had a purpose that was highly transformative, specifically because it made a whole new resource for electronic access and analysis of data and information contained in this library of works. Furthermore, under another fair use factor, the public display of text provided to the public from the works when searched in Google Books is only a small amount, and these limited snippets are deemed to be an insignificant amount of the work. Additionally, another factor is effect on the market for the original work, and Google Books is not an actual market substitute for the protected aspects of the originals.
That means three of the four fair use factors favored Google rather than the authors. The final factor is the nature of the works, and while that factor almost certainly favors the authors, the balance of the equities favored Google because even though Google is a commercial entity with some profit motivations, this Google Books tool provides a new useful public service that may actually increase the market for the original copyrighted works in view of greater visibility to the public who may need information from the original books.
So Google avoids what would be a devastating loss, as minimum damages for copyright infringement is $750 per work, multiplied by the millions of works in Google Books becomes billions of dollars. Google Books will remain active, subject to a final appeal to the Supreme Court, which the authors' guild plans to petition for.
Even though this case has origins that date back about a decade, the law on fair use has certainly shifted in that time period to favor Google. What may have been a serious gray area case just a few years ago now seems to firmly fall under the side of fair use rather than copyright infringement. When this increase in the scope of fair use leads to truly useful research tools and new options like Google Books, it's easy to defend those organizations fighting for dramatic fair use expansion in the courts.
But one has to wonder if this trend risks going way too far and undermining the legitimacy and value of copyrights across the board. Something to watch as these major decisions continue.
Until next time, keep your fair use factors handy, and your Google tools also!
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Returning to the Google Books case, the judges ruled that Google's unauthorized digitizing and copying of the copyrighted works had a purpose that was highly transformative, specifically because it made a whole new resource for electronic access and analysis of data and information contained in this library of works. Furthermore, under another fair use factor, the public display of text provided to the public from the works when searched in Google Books is only a small amount, and these limited snippets are deemed to be an insignificant amount of the work. Additionally, another factor is effect on the market for the original work, and Google Books is not an actual market substitute for the protected aspects of the originals.
That means three of the four fair use factors favored Google rather than the authors. The final factor is the nature of the works, and while that factor almost certainly favors the authors, the balance of the equities favored Google because even though Google is a commercial entity with some profit motivations, this Google Books tool provides a new useful public service that may actually increase the market for the original copyrighted works in view of greater visibility to the public who may need information from the original books.
So Google avoids what would be a devastating loss, as minimum damages for copyright infringement is $750 per work, multiplied by the millions of works in Google Books becomes billions of dollars. Google Books will remain active, subject to a final appeal to the Supreme Court, which the authors' guild plans to petition for.
Even though this case has origins that date back about a decade, the law on fair use has certainly shifted in that time period to favor Google. What may have been a serious gray area case just a few years ago now seems to firmly fall under the side of fair use rather than copyright infringement. When this increase in the scope of fair use leads to truly useful research tools and new options like Google Books, it's easy to defend those organizations fighting for dramatic fair use expansion in the courts.
But one has to wonder if this trend risks going way too far and undermining the legitimacy and value of copyrights across the board. Something to watch as these major decisions continue.
Until next time, keep your fair use factors handy, and your Google tools also!
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, October 15, 2015
Legal Geek No. 54: DC Defends the Superman Trademarks with Vigor!
Welcome back to Legal Geek. This week, we take a look at how DC Comics is continuing to defend the long-standing trademarks in Krypton and Kryptonite against the forces of evil, AKA, trademark dilution.
https://archive.org/details/LegalGeekEp54
Superman started as a comic book in 1938 but further trademarks were developed in 1943 for Krypton and Kryptonite, which of course is the fictional material capable of weakening the Man of Steel. Krypton is a real element on the periodic chart as well as Superman's home planet, but that has not stopped DC Comics from continuing to actively use the mark and establish continued rights of the trademark (via secondary meaning to consumers, if nothing else).
As we've covered before on this segment, part of properly maintaining trademark rights is stopping others from cutting in on the mark and diluting it, such as by confusing consumers about the source of goods and services. The battle likely never ends with marks like Krypton, which have scientific as well as fictional roots. Just this month, DC Comics has actively engaged in legal disputes with two potential competitors using Krypton or Kryptonite marks.
In October 2014, Ravensmoon Productions filed a trademark application to register the Kryptonite Vapor mark and logo that the company uses with electronic cigarette refill cartridges. This product has been sold since 2013 using the mark without much fuss from DC. But many times, the application for a trademark is precisely what causes an original trademark holder to more vigorously defend their own rights, and that's what happened here.
DC Comics recently filed an opposition in the US Trademark Office against the allowance of Ravensmoon's application, and it looks Ravensmoon has no interest in a fight with the Man of Steel. They have announced on their website that the product formerly known as Kryptonite Vapor is now sold as Ravens Moon Vapor. So fear not, citizens of Metropolis, your teenagers won't be confused about whether their favorite vaping cartridges are officially licensed by DC Comics anymore.
While Ravensmoon may be a smaller company not willing to take on the likes of DC Comics, a much bigger company is also now at odds with this Superman IP in a similar fashion. Just this week, DC Comics filed an extension of time to oppose Chevrolet's own trademark applications for Krypton and Camaro Krypton in a class that covers automobiles. This trademark application has led to some rampant speculation about what project Chevrolet has in mind for these trademarks, including some assumptions that it has something to do with DC Comics (which clearly we now know is not the case).
Unlike some other DC superhero like Batman and his bat mobile, there's not an immediate obvious tie between Superman and automobiles. However, the mark is 70 years old and is so strong that consumers very well may assume at this point that Chevy's use of Krypton has something to do with DC Comics. That's the open question that will need to be decided by the Trademark Office or a court if DC Comics goes forth with an opposition or a trademark infringement lawsuit.
It will be fascinating to see what this project is, if it ever sees the light of day, and whether these two mega companies are willing to make a deal over this famous Superman IP. Keep an eye on these giants and the potential rare trademark battle between relative equals as far as legal backing and funding go.
Bottom Line: we can learn a lot from watching creative companies like DC Comics defend trademarks like the Superman IP, and one of this life lessons is to avoid filing trademarks that compete like Ravensmoon and Chevrolet has unless you are ready to fight a tough legal battle.
Until next time, don't go leaping buildings in a single bound without requesting a license from DC Comics.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp54
Superman started as a comic book in 1938 but further trademarks were developed in 1943 for Krypton and Kryptonite, which of course is the fictional material capable of weakening the Man of Steel. Krypton is a real element on the periodic chart as well as Superman's home planet, but that has not stopped DC Comics from continuing to actively use the mark and establish continued rights of the trademark (via secondary meaning to consumers, if nothing else).
As we've covered before on this segment, part of properly maintaining trademark rights is stopping others from cutting in on the mark and diluting it, such as by confusing consumers about the source of goods and services. The battle likely never ends with marks like Krypton, which have scientific as well as fictional roots. Just this month, DC Comics has actively engaged in legal disputes with two potential competitors using Krypton or Kryptonite marks.
In October 2014, Ravensmoon Productions filed a trademark application to register the Kryptonite Vapor mark and logo that the company uses with electronic cigarette refill cartridges. This product has been sold since 2013 using the mark without much fuss from DC. But many times, the application for a trademark is precisely what causes an original trademark holder to more vigorously defend their own rights, and that's what happened here.
DC Comics recently filed an opposition in the US Trademark Office against the allowance of Ravensmoon's application, and it looks Ravensmoon has no interest in a fight with the Man of Steel. They have announced on their website that the product formerly known as Kryptonite Vapor is now sold as Ravens Moon Vapor. So fear not, citizens of Metropolis, your teenagers won't be confused about whether their favorite vaping cartridges are officially licensed by DC Comics anymore.
While Ravensmoon may be a smaller company not willing to take on the likes of DC Comics, a much bigger company is also now at odds with this Superman IP in a similar fashion. Just this week, DC Comics filed an extension of time to oppose Chevrolet's own trademark applications for Krypton and Camaro Krypton in a class that covers automobiles. This trademark application has led to some rampant speculation about what project Chevrolet has in mind for these trademarks, including some assumptions that it has something to do with DC Comics (which clearly we now know is not the case).
Unlike some other DC superhero like Batman and his bat mobile, there's not an immediate obvious tie between Superman and automobiles. However, the mark is 70 years old and is so strong that consumers very well may assume at this point that Chevy's use of Krypton has something to do with DC Comics. That's the open question that will need to be decided by the Trademark Office or a court if DC Comics goes forth with an opposition or a trademark infringement lawsuit.
It will be fascinating to see what this project is, if it ever sees the light of day, and whether these two mega companies are willing to make a deal over this famous Superman IP. Keep an eye on these giants and the potential rare trademark battle between relative equals as far as legal backing and funding go.
Bottom Line: we can learn a lot from watching creative companies like DC Comics defend trademarks like the Superman IP, and one of this life lessons is to avoid filing trademarks that compete like Ravensmoon and Chevrolet has unless you are ready to fight a tough legal battle.
Until next time, don't go leaping buildings in a single bound without requesting a license from DC Comics.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, October 1, 2015
Legal Geek No. 53: Work Smartphones and Self-Incrimination
Welcome back to Legal Geek. This week, we review an interesting decision from a Federal Court in Pennsylvania about personal smartphone passwords and whether they are protected under the 5th Amendment.
https://archive.org/details/LegalGeekEp53
The 5th Amendment of the U.S. Constitution provides a number of rights, including the right of a defendant to not be compelled in a criminal case to self-incriminate oneself. Some of the interesting exceptions and limits to this rule were invoked this week in a case involving the Security and Exchange Commission and two defendants being prosecuted for possible insider trading.
More specifically, two former employees of Capital One are being investigated by the SEC for allegedly making over $2.8 million dollars trading on advance company earnings information gained as a part of their former jobs as data analysts for the bank. What led to the ruling this week was the fact that Capital One issues company-owned smartphones for employees, and the SEC wants to access the information on the former employees' phones to scour for incriminating evidence to prove the insider trading occurred.
But the fact that turned this ruling is this: Capital One has employees pick their own private passwords for the phones, and it is company policy to not have employees give this password to the company for security reasons. So even though these employees returned the phones to Capital One when they were fired a few months ago, Capital One cannot access the information stored on these smartphones because the former employees are the only ones who know the password.
The SEC argued under a rule called the collective entity doctrine that these were corporate records possessed by former employees, which are generally not protected by the 5th Amendment. But the court ruled that the confidential passwords chosen and maintained by the former employees could not be deemed corporate records since only the former employees know that information. Indeed, the fact that Capital One asks employees to not keep records of these personal passwords is directly contrary to assuming this is something owned by the corporation.
The SEC then tried to argue a different exception to the 5th Amendment applied, the so called foregone conclusion doctrine. That doctrine causes information to not be shielded from 5th Amendment protection when the government already knows of its existence and location. However, the court disagreed with this argument because the SEC is really on a fishing expedition, and the government agency doesn't know absolutely for certain that incriminating information is on those phones.
So the company and the government both do not have any rights to access data protected by personal passwords kept secret by the former employees and current defendants. The 5th Amendment protects the former Capital One employees from potential self-incrimination based on whatever was stored on those company phones.
The Bottom Line is, despite the 5th Amendment winning the day with these facts, one would be wise to limit all types of personal information you put on company property, whether the computer or smartphone has private personal passwords or not. It can only lead to tough situations if a firing ever occurs.
Until next time, stay smart with personal privacy and hope you never have to rely on the criminal protections offered in the Constitution.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp53
The 5th Amendment of the U.S. Constitution provides a number of rights, including the right of a defendant to not be compelled in a criminal case to self-incriminate oneself. Some of the interesting exceptions and limits to this rule were invoked this week in a case involving the Security and Exchange Commission and two defendants being prosecuted for possible insider trading.
More specifically, two former employees of Capital One are being investigated by the SEC for allegedly making over $2.8 million dollars trading on advance company earnings information gained as a part of their former jobs as data analysts for the bank. What led to the ruling this week was the fact that Capital One issues company-owned smartphones for employees, and the SEC wants to access the information on the former employees' phones to scour for incriminating evidence to prove the insider trading occurred.
But the fact that turned this ruling is this: Capital One has employees pick their own private passwords for the phones, and it is company policy to not have employees give this password to the company for security reasons. So even though these employees returned the phones to Capital One when they were fired a few months ago, Capital One cannot access the information stored on these smartphones because the former employees are the only ones who know the password.
The SEC argued under a rule called the collective entity doctrine that these were corporate records possessed by former employees, which are generally not protected by the 5th Amendment. But the court ruled that the confidential passwords chosen and maintained by the former employees could not be deemed corporate records since only the former employees know that information. Indeed, the fact that Capital One asks employees to not keep records of these personal passwords is directly contrary to assuming this is something owned by the corporation.
The SEC then tried to argue a different exception to the 5th Amendment applied, the so called foregone conclusion doctrine. That doctrine causes information to not be shielded from 5th Amendment protection when the government already knows of its existence and location. However, the court disagreed with this argument because the SEC is really on a fishing expedition, and the government agency doesn't know absolutely for certain that incriminating information is on those phones.
So the company and the government both do not have any rights to access data protected by personal passwords kept secret by the former employees and current defendants. The 5th Amendment protects the former Capital One employees from potential self-incrimination based on whatever was stored on those company phones.
The Bottom Line is, despite the 5th Amendment winning the day with these facts, one would be wise to limit all types of personal information you put on company property, whether the computer or smartphone has private personal passwords or not. It can only lead to tough situations if a firing ever occurs.
Until next time, stay smart with personal privacy and hope you never have to rely on the criminal protections offered in the Constitution.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
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