Posted in author bio

O. Henry

William Sidney Porter better known as O. Henry was born on September 11, 1862 in Greensboro North Carolina. After his mother’s death his upbringing and education were heavily influenced by his grandmother, Ruth Worth Porter, and his aunt Evalina Porter. Porter became an apprentice in his uncle’s drug store at 15 years of age. His career changed when he developed what was suspected as consumption. As a result he moved to Texas. 

He married Athol Estes in 1887. To provide for his family he sold his stories to supplement his income. His wife gave birth to two children, a son who died in infancy, and a daughter named Margaret. 

In 1891 Porter was a teller in the First National Bank of Austin. in 1894, He came under scrutiny as the banks only bonded employee because an audit revealed that funds were missing. A grand jury indicted him on four counts of embezzlement totaling $5,000. Interestingly enough, he jumped bail and fled to South America. But he came back due to his wife’s tuberculosis. In 1898, he was found guilty and was sentenced to 5 years in prison. When he came out, he assumed the name O. Henry. 

One of the things that characterized O. Henry’s writing was money ruling world. Many feel that this love/hate relationship with money was due to the fact that O. Henry spent his money as quickly as he wrote his stories. His fame and income increased as exponentially as his person demons took hold. O. Henry spent his latter years fighting alcoholism. He did remarry, but they mutually agreed to split two years later. He tried theater, but ended up almost financial ruined. He died in a hospital from kidney failure on June 5, 1910 with 23 cents in his pockets.

Posted in Uncategorized

Shoes

The story is a joke gone wrong. John De Graffenreid Atwood was the American consul at Coralio; and he was trying to forget Rosine. While under the influence of brandy we learn that Rosine has chosen Pink Dawson a farmer with 500 acres. Meanwhile he receives a letter from an American citizen wanting to know whether it would be profitable to open a shoe business. John thinking it is a joke from his uncle back home, sends word saying that there are 3,000 inhabitants and not a shoe store among them. He of course does not mention that people don’t where shoes in Coralio. 

Several weeks later, the man selling shoes has landed with 6 barges of shoes totaling $4,000. As it turns out, the shoe salesman is none other than Rosine’s father with Rosine in tow. As it turned out, Rosine wasn’t at all impressed with Pink Dawson. So John must save the day to keep his hopeful future father-in-law from going belly up. I’m not going to tell you the plan. But it was rather ingenious. As typical of O. Henry there was a little twist at the end. But you’ll have to read it for yourself. 

I thought it was funny. What men will do for love! Of course I don’t think I’ve ever heard of someone going quite this far. I mean usually it’s conquering a city or defeating a villian. But inflicting pain on two different villages! ACTION: side aching mirth. So someone read it and tell me what you think. 

Posted in Legal

The Ten Commandments of Trying a Case According to Bluestocking

At last the trial betwixt WB/JKR v. RDR books comes to its conclusion. It’s been a rough three days. I won’t cause anyone a stroke by attempting to recap the whole week. Instead I’m going to have fun with this. Why? Because darn, plaintiffs made a whole slew of faux pas! In fact I think third year law students could have done a better job. So I’m going to comment on this travesty of a trial by outlining for you the 
Ten Commandments of Trying a Case as set forth by yours truly Bluestocking. 
(Hem hem. I am about to adopt a somewhat King James tone. You may wish to go to the next post if you can’t handle it. )

1. Thou shalt not bring causes of action based upon moral outrage

Many people don’t realize it but moral outrage isn’t always a legally cognizable right. A perfect example of this concept is the “duty to rescue.”  There is no general duty to rescue. Yes there are exceptions like parent/child relationships or police duty or if you had a hand in creating the danger I. E. You jokingly push a kid into the swimming pool not realizing he can’t swim. Other than that if someone accidentally catches themself on fire you can watch them burn to death. Morally and emotionally outrageous absolutely. Legally culpable- nope.

Pretty much all of WB/JKR’s case consisted of the author’s moral outrage. Yes, we understand that as an author you are naturally protective of what people do with your work. Hey, if they are creating continuations of your story to sell them- suit the snot out of them. But writing reference guides so children can easily understand and keep track of the enormous amount of information you choose to put in your book? You know every great author has reams of reference guides about their work. The man is turning you into a living legend and you sue him? Hmm. 

Anyway, day one of law school the professors hammer you over the head anytime you made an emotional argument. Because what’s feelings go to do with it? Nothing! Apparently Cendali missed that lesson at Harvard Law. 

2.  Thou shalt know thy facts and accept them as they are rather than the way thou wishes them to be.

When I was interviewing for a job, a certified trial attorney told me “cases are won on the facts. The attorney that knows the facts the best is usually the one that wins.” WB/JKR missed the forest for the trees. They narrowed the scope of Fair Use too much. You have to take the work as a whole. The Lexicon is written for children who are the target age of the books. Of course it is written simply. In addition SVA never claimed it was “scholarship” so why treat it that way. WB/JKR seemed determined to fit the Lexicon into a certain mold regardless of whether the book actually belonged in that mold. Also Cendali didn’t seem to have any clue as to what RDR’s witnesses were going to say. Don’t you think you should have checked to make sure Rappaport knew JK Rowling was going to publish an encyclopedia before you make the assumption that he was trying to compete with her? With a lot of the facts, it sounds as though somebody didn’t investigate properly. And for crying out loud you removed the citations and deleted portions of the Lexicon’s actual text to prove your point. Then on top of that you brought up examples of text that aren’t even in the Lexicon because they’ve been edited out. 

3.  Thou shalt properly advise thy client.

People hire attorneys because they don’t know the law. It is up to you as the attorney to correct advise them as to their options. Part of this process is telling your client- YOU DON’T HAVE A CASE or you need to be reasonable. Sometimes, you can to have a sit down chat and rake them across the coals for their stupidity. So be it! You must always be realistic. Clients have this annoying tendency to believe that as you are an attorney you can walk on water or leap tall buildings in a single bound. You really got to nip that one in the bud! 

4.  Thou shalt not send Cease and Desist letters if you cannot reasonably expect to win at trial.

I play fair as an attorney. In fact most of us do. However there are those few who don’t and give the rest of us a bad name. I don’t believe bullying is an appropriate way to settle disputes in favor of your client. Unfortunately WB/JKR have been misusing Cease and Desist letters. Yes, it is appropriate when people are selling your work. But bullying people into not publishing secondary material because you’re client who sells over 10 million copies in the first 24 hours is having either inferiority issues or is tripping on the “p” (tripping on the p is the Bluestocking Guide’s way of saying power trip). That’s wrong on so many levels. Hey I’ve sent out Demand letters before; but I also had an iron clad case. If you’re going to be all big and bad, you better Bring It to court. Cendali didn’t bring it! This whole situation with RDR reminded me of that instance in HP where Dumbledore was explaining to Harry that all tyrants like Voldemort fear that one amongst the masses will rise up and overthrow them. RDR was the one that rose up and decided to fight back. And darn it! They’ve put up a good fight and more than leveled the playing field. I hope WB/JKR decides to proceed with caution in the future. 

5.  Thou shalt not manufacture evidence.

Seriously, if you are going to show that somebody “actually copied” your work, you should actually show what they did. I mean if you have to change the supposed quotes in the books or remove all the citations to prove your point, you must have not had a case to begin with. Not to mention, what do you think the judge is thinking of you when you bring evidence that you’ve “created.” Damages your credibility alot. 

6.  Thou shalt win thy case on the merits rather than win thy case by unduly delaying trial.

This is another dirty trick. Like I’ve said before, unfortunately justice can be purchased. The larger your wallet, the more justice you can get for yourself. Come on, if you have a good case, then you have a good case and you’re ready to try it and get it over with. But making your opponent spin his wheels so he can’t afford to fight you. Isn’t that kicking someone while they’re down. Yeah, I don’t play that way.

7.  Thou shalt not allow thy client to make an ass of themself on the witness stand.

Yeah, when I go to court, I read my client the riot act on how to conduct themselves in court. In fact, I told my client off in the court one day, because he probably would have gotten arrest acting like a jerk! Ok so I have told my municipal clients that if they screw up I won’t be going to jail with them. I mean sometimes crying is appropriate, but acting like a lunic is something different. Having your client disrespect other people on the stand doesn’t get you brownie points with the judge. Allowing your client to have a rant shows an utter lack of respect for the court. Cendali didn’t have to allow JKR to testify as rebuttal. Your client has ultimate say on issues of settlement, but as an attorney, you have the final say as to how the case is tried. Don’t know what Cendali was thinking

8.  Thou shalt properly prepare thy expert witnesses beforehand.

Ok so having the judge say that he’s not adopting the expert’s testimony as his own because she isn’t giving specifics is not good for your case. Hiring an expert in the wrong field i.e. Jeri Johnson is not a child literature expert is a big mistake. This case really boiled down to the battle of the experts. And both WB/JKR’s experts got taken out. One by the judge; the other by David Hammer. You really have to pick your experts properly and given them all the facts. If the other sides can knock out the basis for their opinions, then the expert is worthless. 

9.  Thou shalt not try a case unless you actually know what the heck thou art doing.

Ok so Cendali has only won 3 cases. She probably hasn’t tried many more than that. Copyright law is more transactional than litigious. Mostly you send out a lot of Cease and Desist. She settles most things or gets it knocked out on Summary Judgement. This is a far cry from trying a case. And when your opposing counsel has 60 trials under his belt, you really should find a trial attorney in your firm to help you rather than attempting it yourself. Hammer railroaded Cendali all over the place and she couldn’t recover. You have to be experienced in trying a case and that comes with time and actually trying a lot of cases. 

10.  Thou shalt start praying when David S. Hammer, Esq comes to cross examine thy witness.

I don’t think this requires elucidation. 

Anyway, I hope you found that as entertaining to read as I found it to write. In conclusion, the trial from a strategy point of view was a fiasco for Cendali. In fact I don’t think there was a strategy. Surprisingly WB/JKR was outclasses by a trial lawyer whose forte is not copyright and some law professors. Maybe a change in counsel is warranted. 

Who will win? Well from all that I’ve read, the Judge wasn’t acting too kindly towards WB and threw out a lot of evidence plus expert testimony. Unless I missed something WB doesn’t have hardly anything for its case. They bore the burden of proof. Unless the Judge made jokes about the HP to throw everyone off, its sounds like he was leaning in favor of RDR books. 

Thus concludes my week in review. 

Posted in Star Trek

Star Trek Terek Nor: Day of the Vipers

This book explores how the Cadassian Occupation of Bajor came to be.

The Cardassian world was in a great deal of trouble. Because they were so militaristc in nature most of their planet’s resources were used for war materiale. As a result the people of Cardassia were starving. Rather than abandon their war like tendnecies they co-oped worlds into providing them with resources in exchange for “helping” those worlds advance. Bajor was such a world.

Bajoran civilization hadn’t changed in millenia. They had a caste system known as D’jarras. Theie caste system was the reason they were denied entrance into the Federation. Theirs was a strongly spiritual world. Their faith in the Prophets permeated every aspect of their lives. The Bajorans had plenty; the world screamed of excess. It seems as though once the Bajorans reached the pinacle of their civilization they spent that point forward maintaining that point. Unfortunately the Bajorans were also isolationist. They disliked and even distrusted aliens.

The Cardsssians picked up on the fact that the Bajorans needed outside impetus to overcome their stagnation. They decided to annex Bajor by engineering situations in which the Bajorans needed to rely heavily on Cardassia’s advanced technology. They exploited Bajor’s religion by including Cardassian zealots- Oralians in the welcome wagon. Then they had the Oralian leader ask for sanctuary for their religion. The Military used the transport of these zealots to mask the creation of military bunkers.

Anyway a lot of Bajorans die mysteriosly. Of course the Bajorans are none the wiser. Well some people had more brains and questioned thing but their life expectancy dropped dramatically.

In this book we are introduced to Skrain Dukat the nemesis of Sisco as well as Alynna Nechayev the future head of Starfleet Intelligence. We also see the Obsidian Order at work. Not to mention glimpse the inner working of Cardassian culture.

I liked it. The book moves slow but that’s because there was a great deal of. Set up. Definitely a must read for those who want to know the history of the Bajoran Occupation.

This book can be summed in the expression “Beware Greeks bearing gifts.”

Posted in Children, Liked It, Nancy Drew

The Secret of the Old Clock

I really enjoyed my trip down memory lane. So I’m going to take another one.

This is the first in the Nancy Drew series. This series was first published in the 1930’s but it was revised beginning in 1960.
Nancy Drew lives with her father Carson and their housekeeper Hannah Gruen in the fictional town of River Heights. Her father is a well-known attorney in the town. Nancy is described as being a Titian-meaning red head. It is interesting to note that the Drew family seems uneffected by the Great Depression which affected the country at this time.
Nancy is 18 years old and clearly finished high school. Aside from that she doesn’t seem to have anything productive to do with her time besides charities.

The story begins with her father having her deliver some documents to the judge in the next town. On the way back she nearly runs a child, Judy, over in her blue convertible.

When she takes the injured child into the house she meets Mary and Edna Turner who are relatives of Josiah Crowley, who recently died a left a good deal of money according to a last will. The two older women are interested in the money for the little girls sake as they will be unable to educate her when she is older. Nancy decides to do something about it.
On the way she runs into who are the family to inherit under the current terms of the will (The Richard Tophams), she also meets the Hoover sisters-one of which will become a promising singer. Nancy also meets Abby Rowan, an older cousin of Josiah Crawley, who gives Nancy the secret that she needs namely that the key to the will is in the Old Clock. Well guess who the clock belongs to?

Nancy uses subterfuge and a whole host of tricks to elude thieves, foil her captors, and ultimately find the missing will.
I remember this book started me on a Nancy Drew mania. I made my mom drive me to the library headquarters every week during the summer.
I did some wikipedia research. It seems the books were heavily edited. The first books had Nancy as a 16 year old. This first book was rewritten to exclude the car chase involving guns. Hmm I think I need to track down these original. If anyone has first additions please comment on the differences.

Posted in Fantasy, Liked It

Perelandra

This is the second book in C. S. Lewis’ space trilogy. The first book is Out of the Silent Planet. 
At the close of the last book, the Oyarsa of Malacandra intimated that Ransom might be part of the siege on our world coming to an end. Ransom received orders to go the Perelandra or Venus. The bent Oyarsa of our world was trying some sort of attack on Perelandra. The bent Oyarsa cannot go past our moons orbit so he was using someone else to do his bidding. 
Ransom arrives in a coffin like box au naturale. When he arrives on Perelandra, he discovers it is a neo-Eden complete with neo-Adam and neo-Eve. Venus is an ocean world with mythical creatures roaming the sweet waters. The land masses float much like a raft. There is only one solid land mass on the planet. 

Soon after arriving, Ransom meets Tinidril who is the Queen of the World. Unlike the inhabitants of Mars, she is human with green skin. It is explained that after Maledil became human he populated Perelandra with humans. The Venutian “forbidden tree” is that Tinidril and Tor may not sleep on the Fixed Land. You can see how Ransom is being changed. Although he is fallen, he lives on Perelandra with Tinidril in nakedness without lust for several weeks. 
Then the Temptor comes in the form of Professor Weston, one of Ransom’s abductors in the last book. Weston claims that he has been a changed man; however as time progresses Ransom realizes that Weston has become demon possessed. Ransom’s mission is clear; he is to prevent a Second Fall from happening on this World. Ransom and Weston battle it out for Tinidril’s soul. But Ransom is hard-pressed as Weston’s demonic possession has given him super-human intelligence and brilliance in his arguments. 

As Ransom begins to despair that he will win the struggle, he receives instructions in his dream to kill Weston. At first he is reluctant to do so, but after coming upon some creatures that Weston has mutilated, the battle is on. The two fight and fight. I think it went on for days. Weston was near impossible to destroy as he was demon possessed. In the end, Ransom sent him to a literal hell. The victory was not without cost. Ransom was bitten on the heel; and it never heals properly. It was reminiscent of Genesis 3:15 I will put enmity between thee and the woman and between her seed and thy seed, He saw crush thy head, and you shall bruise His heel. Ransom does meet Tor as well as the Oyarsa of Perelandra. He learns where Tor was during Tinidril’s temptation. He also learns what will happen on Perelandra for the next 10,000 and more of the plans to retake Thulcandra. Then Ransom returns home. 

Posted in Legal

And Cendali Passes the Buck to Shallman

OK! Here’s the quick and dirty summary on the motions. 

RDR”s Argument as to why the documents should be excluded
There are 900 pages of charts that were only produced under court order. The plaintiff’s had intended to produce them only 3 days before trial
1. Untimely summaries of expert’s reports. Since the Rule 26 Disclosures, the experts have been very much aware of all the issues. They issued declarations that didn’t contain any opinions on issues present from the start of the case. To submit them so close to trial violates the spirit of Rules 26. In addition, it is unclear who created the reports and the methodology that was used to arrive at the conclusions made. Under the Federal Rules of Civil procedure each side must submit Rule 26 discovery lists. Basically you tell your opponent up front who you intend to call as a witness, the source of their knowledge, and you describe the documents in general that you intend to produce. The Federal Rules of Evidence state that Expert witness must give the background and methodology used for all of their opinions for it to be admissible as evidence. Experts have to used the generally accepted principles of their field. If they don’t, then their opinion is worthless. This prevents attorneys from just paying people to say what they want. 
2. Some of the material used is material Rowling doesn’t have copyright to. The law is clear in stating that there is no copyright infringement where the plaintiff has no copyright. This violates legal principles of justiability, which requires amongst other things that there be “injury in fact” and a “real party in interest.” So basically if John hits Suzie and breaks her jaw, Allen (the boyfriend) can’t sue John for Sue’s injuries. The principles of justiability have to be met in every case brought before any court. 

In conclusion, the plaintiffs have given no valid justification for failing to produce these documents. In any case, you need time to get expert opinions on the other sides experts. It’s impossible to do this when you receive the expert reports at the 11th hour. It prejudices the party because their attorney can’t provide them with an adequate legal defense. I’m sure if Hammer did this to Cendali she’d be raising quite a ruckus!!! 

WB/JKR’s Argument as to why the documents should be included
1. The exhibits are admissible under the Rules of Evidence.
a. They are voluminous writing 
b. The underlying documents are admissible. 
c. Defendant’s had access to underlying documents
2. The exhibits are admissible as the basis for Expert Opinion. Generally the facts or evidence upon which an expert is relying is admissible even if otherwise it would not be admissible. 
3. This is classic demonstrative evidence
4. Given that Defendant’s expert report was belatedly given, this is equitable (fair). 

Ok! This brief was written by Shallman, who is now admitted pro hac vice. He writes a better brief than Cendali for sure. However it is deficient. When you write a brief in opposition, you are supposed to be dealing with the issues that the movant raised. Shallman missed the boat. Hammer argued that this is “sandbagging” and that the plaintiff’s are bring in evidence over which the Court has no jurisdiction So what plaintiff’s should have shown was why they had a good excuse for not turning over the documents in a timely fashion and that Rowling has a valid copyright to the chocolate cards, etc. Defendant’s motion was not about the rules of evidence. The rules of evidence determines what type of evidence can be admissible as relevant. However, the rules of the court tell you when the Court can exclude otherwise relevant evidence such as not producing documents in a timely fashion. So basically it was comparing apples to oranges. I personally think the judge will rule in RDR’s favor for one of two reasons: 1. Plaintiff’s did try to sandbag and Cendali was probably using this to delay trial. 2. Plaintiff’s brief was not responsive; they gave no defense for the court to consider in their behalf. 

The arrival of Shallman on the scene is interesting. I checked his attorney profile. He has a lot more trial experience than Cendali. He, like, Hammer was a former prosecutor. Hmm, I’m thinking Cendali realize that she is going to have to try this case and realized that she is heavily outclasses so she brought in Shallman to help level the playing field. But seeing how Shallman is coming in at this late date; I wonder how effective he can be. I mean his brief was so off base. I wonder if WB/JKR are going for some sort of reversible error. Meaning that they may try to argue that seeing how there is new trial attorney, the court should have granted an extension so he could get up to speed. I don’t think it will work, if that’s where they are going. I mean, Cendali has been on notice for a month that trail was going to occur, Shallman could have been brought in long time ago. 

Sorry, I know that’s rushed. But trial starts on Monday. So I wanted to get that out there A.S.A.P. I know I’m about to devastate some of you, but I’ll be MIA next week. I’m starting a new job. I’ll be peeking in on this post. So I’ll try to answer questions if you leave them. Hopefully I’ll have a little bit of time to post an update at some point. 

Just a little bit of trial information for you.

Opening statements. Each side typically gives an opening statement during trial by jury. Since this is a bench trial, there may be none. Basically you summarize your case in chief by stating what the issues are and what evidence you will present. Like I said this might not happen as it is a bench trial, and the judge knows the law and is familiar with what each side is likely to present to prove their case. Sometimes, the Defendant reserves their opening statement till when they present their case in chief. 

Plaintiff presents their case first, as they bear the burden of persuasion. They must establish all elements of the prima facie case to succeed on their claim. Each witness will be sworn in and they will be directly examined by Cendali/Shallman then cross-examined by Hammer. Once they are finished the Plaintiff rests. 
Defendant may given their opening statement at the beginning of their case in chief. They will put their witnesses on for direct examination; then Cendali/Shallman will cross-examine them. 
At the end of the case, each side will give a closing statement which sums the testimony presented. Basically each side will argue we have met our burden for x, y, and z reason. 
Then the judge will render his decision. 

Posted in Legal

WB/JKR v RDR Books: Pre-Trial Shennanigans

As we approach the eve of trial, the information is coming fast and furious. So typically before trial both sides must submit witness lists and preliminary statements. 

The preliminary statement is basically an overview of the plaintiff and defendant’s theory of the case before the court. Usually it’s not overly long unless it’s like a class action suit. (Anything italicized and in brown is my legal commentary)

RDR’s Pretrial memorandum
The Defendants start their statement with the causes of action being presented, the elements of each cause of action, and why the claim has or hasn’t been met.
Copyright Infringement
Prima facie case
ownership of valid copyright
defendant’s infringement by unauthorized copying. Unauthorized copying is shown by 
Actual copying
Improper or unlawful appropriating by showing substantial similarity of the individual element but also the work a a whole. 
Now as I have mentioned, these are ELEMENTS which means that you must show all to make a prima facie case. Defense argues that Plaintiffs have not made a prima facie case because the second element is not met. Namely there isn’t substantial similarity. Significant factual information is not enough. Remember copyright only protects “expression of ideas” not the ideas themselves. Defendant only copies minimal amounts of “expression.”

Affirmative Defenses (argument in the alternative)

Fair Use-
Factors
Purpose and Character of the Use
organizational value- reference volume
original commentary and analysis- decodes meaning of geographical and historical references, folklore, and literary allusions.
additional research and new information- Rowling’s interviews, newsletetrs, webcasts, etc.
Nature of the copyrighted work
amount and substantiality of the portion used
market effect

As I said in a comment earlier on, transformative does not mean it has to be like Moses receiving the Ten Commandments on Mt. Sinai type revelation. Also remember FACTORS are a balancing of the interests. So even if you don’t have one, the others can outweigh it. 

Copyright misuse

Plaintiff has attempted to extend copyright protection beyond the proper scope whether in the plaintiff’s dealings with the defendant or any other persons. Anti-trust violation does not need to be proved to prevail. Any violative of the public policy behind copyright will suffice. They will show that plaintiffs have a habit of alleging copyright infringement against anyone who writes a companion book to the series. Then they cite examples of Connie Ann Kirk, Emerson Spartz, Fionna Boyle, and Elizabeth Shafer. 

Whew that was concise yet powerful! That is excellent legal writing CRAC! Hammer states the elements plus exceptions for everything. 
____________________________________________

Plaintiff’s Pretrial memorandum
In the main, the statement, regurgitates their previously filed motion here. If that is not the doc, go to the main blog page, in the legal opinion section it lists all my discourses on the topic. 

Copyright Infringement
Ownership of Valid Copyright- it is not disputed that JKR has valid copyright of the HP Series. 
Defendant’s book is based on the series and substantially similar. This is a gross misstatement of law. I checked the case law for copyright infringement “based on a work” isn’t good enough. You have to show “copying of the work.” Ok Plaintiffs are off to a rough start. Cendali is damaging her credibility as counsel with this one. Judges don’t like it when attorneys misstate the law. 

There are no Affirmative Defenses
Defendants Use isn’t Fair Use
Factors
Purpose and Character of the Use- it’s commercial. They fail to distinguish how this case is different from cases where it was held that commercial value doesn’t eliminate Fair Use. 
Nature of the copyrighted work- the underlying work is fictional and the Lexicon is minimally transformative. 
amount and substantiality of the portion used- the facts are taken and organized without commentary or analysis. Fails to take into consideration that Copyright only protects the expression of the ideas not the ideas themselves. See Harper & Row v. Nation Enterprises, 471 U.S. 539, 556 (1985) (holding that copyrights’ idea/expressiong dichotomy strikes a definitional balance between 1st Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression); see also Mazer v. Stein, 347 U.S. 201,217 (1954) (stating, unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea- not the idea itself)
market effect- Ms. Rowling intends to fill the niche for an encyclopedia. Fails to take into consideration that the First Amendment is interested in the “Market place of Ideas” which is not served in only one person JK Rowling is allowed to interpret Harry Potter. 
Bad faith- SVA tried to publish this book clandestinely. Fails to consider that the original copyright holder does not control the creation of secondary works which the Lexicon probably falls under. 

Copyright misuse
Plaintiff has not improperly tried to extend the scope of their copyright. 
Noerr-Pennington- they cannot be held liable for prosecuting this case or sending cease and desist letters in the past. 
Even if no Noerr-Pennington this defense still fails because they were guarding their copyright claims.

UNCLEAN HANDS
Plaintiff has not done anything unconscionable in their dealings. In fact Plaintiffs have used their work to benefit charity. They ignore the fact that there is a plethora of case law showing that unconscionability can be found where one side has significantly more bargaining power than the other side and they obtain a result that benefits them signifcantly. Hey let’s face it if the fully weight of WB came down on you, you’d probably bow rather than face a law suit. WB/JKR have bullied people into believing that they need her consent to write any book related to HP. Not so my dear! 
PLAINTIFFS ARE ENTITLED TO A PERMANENT INJUNCTION
Plaintiff will suffer irreperable harm because someone will think Rowling infringed from the Lexicon. Balderdash! Seriously, she stated that her book would be different from any fan based work. Her book will be a continuation of the story. She must think we are stupid! Like the consumer really wouldn’t know the difference.
Monetary damages are inadequate to compensate. She loses control over derivative works and will suffer injury to the quality of her work. The US code defines a “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”. The work is not being recasted or adapted. Nor is there editorial revisions. This books does not retell the Harry Potter story. 
The only thing the Defendant loses is lost sales because he hasn’t finished the book. Uhm I believe SVA stated he was working on a reference series and this is book 1. Seriously how hard is it to print off these copies. We don’t live in the days of the Guttenberg Press for crying out loud. Of course the Defendant loses out, SVA has spent years of his life working on this and he won’t be able to collect. That’s a pretty big loss. 

SERVES THE PUBLIC INTEREST
Because if we allow this to happen to Rowling it hurts all other authors. The public must protected from those who would infringe.

All right! This is an awful legal argument. Why? Because there is no legal support; all there is an emotional argument. When the law isn’t interested in emotion. Justice is carried out without passion or prejudice. I’m really disappointed in the low quality of this legal argument. 
___________________________________
In preparation for trial you must also submit exhibit lists. Well as you can see from the filing, WB/JKR submitted everything and the kitchen sink! A good portion of these documents may not be relevant. Why submit them? Because Defense needs to go through everything and this could delay the trial, which is probably what Plaintiffs want. Delaying trial means that RDR has more legal expenses.

What’s the problem. This is a Federal Rules of Civil Procedure 11 violation which states in relevant part:

Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions
(a) Signature.
Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name — or by a party personally if the party is unrepresented. The paper must state the signer’s address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s or party’s attention.
(b) Representations to the Court.
By presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it — an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
(c) Sanctions.
(1) In General.
If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.
(2) Motion for Sanctions.
A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion.
(3) On the Court’s Initiative.
On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b).
(4) Nature of a Sanction.
A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation.
(5) Limitations on Monetary Sanctions.
The court must not impose a monetary sanction:
(A) against a represented party for violating Rule 11(b)(2); or
(B) on its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.
You cannot wait till the last minute to bury your opposition in paperwork. That’s needless delay. You already know which documents you will need so you must submit them to the other side. This is a sanctionable offense, meaning WB/JKR would be responsible for paying RDR’s attorney’s fees and other expenses if the court so chooses. If you notice, Hammer submitted a motion in limine regarding theses exhibits. A motion in limine limits evidence that be presented in court during trial for some reason on which the attorney must elaborate. I believe Hammer will argue that this documents are irrelevant or that there isn’t sufficient time to review the documents therefore these documents should be excluded. If the motion is granted, WB/JKR would be barred from not only admitting these documents but also having anyone testify as to the contents of these documents. I think the documents may have been submitted in support of Plaintiffs Noerr-Pennington claims. If these documents are kicked out, it makes it pretty darned impossible to make this claim. Not a smart move on WB/JKR’s part. Judges do not like attorneys who play games like this. Hmmm, I’m suspecting that this is why the judge decided not to delay trial like Cendali wanted; he probably knew she was trying to make the other side cave by sending their legal fees through the roof. NOTE: As an attorney, you never want to get a bad reputation with the court for these sort of antics. Because at some point in time during your career, you are going to need the court to give you extra time. If you piss off the judge, they’ll never give you slack. Also the legal community is small, so whatever happens in Judge Patterson’s court doesn’t stay there; word gets spread to the rest of the judges. Anyway, if you have questions, please post. That way quick an dirty and I know I probably didn’t address everything.

Posted in Legal

The “Hammer” Strikes Back: I hope Cendali is Ready

Yes it’s a clever variation on the title of the Fifth Star Wars movie. This poor man. I know he’s literally working around the clock to be cranking out these kind of well-written briefs. The brief is pretty self-explanatory in fact, I pretty much hit the hammer on the head with my last post. I just wanted to give you a little background on David S. Hammer, Esq. He is a trial attorney. Check out his resume:

2008
Law Practice of David S. Hammer, New York City 
My practice encompasses both civil and criminal litigation. Presently, I am serving as trial counsel in a copyright case, a murder case, and several state court damage actions.
 
2003 to 2008
Partner, Mysliwiec & Hammer, L.L.P., New York, N.Y. 
At Mysliwiec & Hammer, I tried a number of civil and criminal cases. My civil practice chiefly involved contract law, but also focused on accounting issues, as well as director liability under recently promulgated federal litigation. I conducted several arbitrations under the federal securities laws, and also became involved in partnership, copyright, antitrust and bankruptcy law. My criminal practice included the representation of witnesses in federal grand jury investigations, including antitrust investigations, and the representation of defendants in state and federal prosecutions and appeals. I also represented professionals in disciplinary proceedings.
 
1994 to 2003
Law Practice of David S. Hammer, New York City.
My criminal practice included the representation of defendants charged with every conceivable type of crime, from murder for hire to securities fraud to drug conspiracy to antitrust violations. In additional to trying criminal cases, I have represented witnesses in both state and federal grand jury investigations, and defendants in both state and federal appeals. My civil cases spanned a cross-section of commercial disputes, involving contract law, securities, partnership, intellectual property, antitrust, real property, bankruptcy law and matrimonial law. 
 
1992 to 1994
Senior Litigator, Mayer Brown & Platt, New York City
My case load included construction,white collar crime, products liability, real property and personal injury matters, as well as miscellaneous projects such as a litigation review of a merger target. While at Mayer, Brown I worked on several jury trials, a criminal forfeiture proceeding and argued appeals to the New York State Appellate Division and the Second Circuit.
 
1987 to 1992
Law Practice of David S. Hammer, New York City
My practice involved bankruptcy, securities, white-collar crime and antitrust cases, as well as general commercial litigation. 
 
1982 to 1986
Assistant United States Attorney, Southern District of New York
While an AUSA in the Southern District, I tried fourteen felony cases, several trials lasting more than a month, briefed and argued numerous motions to district courts, as well as ten appeals to the Second Circuit, directed lengthy and complex grand jury investigations, and supervised several new Assistants during their early trials. I served in General Crimes, Narcotics and Securities Frauds Units.
 
1980 to 1982
Special Assistant United States Attorney, Southern District of Florida (Miami)
During my two years as a Special Assistant, I tried fourteen felony cases, briefed and argued motions and appeals, supervised all prosecutions arising out of the 1980 Cuban “boat lift”, in the process overseeing several attorneys and a task force of agents. For this work, received the Justice Department’s Special Achievement Award. 
 
1979 to 1980
Attorney-Advisor, Policy Planning, Antitrust Division, Justice Dept., Washington, D.C.
At Policy Planning, I worked on anti-merger enforcement policy and legislation, helping to draft a statutory “pro-competition” defense to proposed conglomerate merger legislation. 
 
1975 to 1979
Litigation Associate, Davis Polk & Wardwell, New York City
While at Davis Polk, I was chiefly involved in antitrust and securities suits, including five contested tender offers.
Now check out the some of the cases he’s won on:
Trials & Appeals
Selected Trials
(Civil)
Warner Bros. Entertainment Inc and J.K.Rowling v. RDR Books, Federal Court in Manhattan
I presently am trial counsel for RDR Books, in an action by Warner Bros. and Ms. Rowling in the United States District Court for the Southern District of New York.
    
(Civil)
Callahan v. Emeritus Capital Parnters, LLC, AAA Arbitration 
Represented Respondents in Securities Fraud Arbitration. Defense completely successful: all claims were dismissed. 
 
(Criminal)
People v. Israel, New York State Supreme Court 
Defense counsel in murder case pending in Manhattan Supreme Court. 
 
(Criminal)
People v. Mayer, New York State Supreme Court 
Successful Defense of client accused of armed robbery.
 
(Civil)
Ehrlich v. UBS PaineWebber, Inc., NASD Dispute Resolution 
Pending arbitration brought by investor against brokerage firm for losses arising. 
 
(Criminal)
People v. Melvin Grant, New York State Supreme Court
Defense counsel in murder for hire case. Obtained an acquittal in spite of three alleged eye-witnesses, and an alleged confession.
 
(Civil)
Keystone Corporation v. AMNEX, Inc., American Arbitration Association
Defense counsel to telecommunications company in arbitration involving accounting issues, merger law and billing methods for long-distance telephone calls
 
(Criminal)
People v. Allen Wiggins, New York State Supreme Court
Defense counsel for accused in murder for hire case.
 
(Civil)
The SoftAd Group, Inc. v Lintas, Inc. , New York State Supreme Court
Plaintiff’s counsel in breach of contract action by software designer against major advertising agency. Verdict for plaintiff, jury granting more damages than requested.
 
(Criminal)
People v. Jun Hua Yang, New York State Supreme Court
Defense counsel for accused Asian gang-member. Even though defendant absconded in mid-trial, jury acquitted him of major charges.
 
(Criminal)
United States v. Dr. Irving Greenfarb, U.S. District Court, S.D.N.Y.
Prosecuted and convicted four doctors for distributing Quaaludes through “sleep clinics”.
 
(Criminal)
United States v. Leopold Frade, U.S. District Court S.D. Fla.
Prosecuted and convicted three of four defendants for Trading With The Enemy.
 
Selected Appeals
Rotterdam Ventures, Inc. v. Ernst & Young, LLP, New York State Supreme Court, Appellate Division, 3rd Department) (reported at 752 N.Y.S.2d 746). 
(Civil) Appeal for plaintiffs in accounting malpractice case, involving issues in the law of negligence and fraud.
 
Merzon v. Lefkowitz, (pending in the New York State Appellate Division, 1st Department)
Appeal for Plaintiffs in a real estate transaction, involving issues of breach of contract, fraud in the inducement and breach of fiduciary duty.
 
People v. Juan Garcia (pending in the United States Court of Appeals for the 2nd Circuit)
Defendant’s appeal from a conviction for illegal reentry to the United States following commission of an aggravated felony. Addresses the meaning of “aggravated felony” under the deportation laws.
 
People v. Rosario (pending in the New York State Appellate Division, 1st Department)
Appeal from two convictions for murder, the first involving issues of self-defense, the second, issues involving the government’s “Brady” obligations.
 
People v. Evans, New York State Supreme Court, Appellate Division, 1st Department (reported at 693 N.Y.S.2d 593).
Appeal from a conviction for drug dealing, involving issues of inconsistent verdicts, the meaning of probable cause.
 
United States v. Ventura, United States Court of Appeals for the Second Circuit (reported at 146 F.3d 91).
Appeal from a conviction for drug dealing, involving questions of a sentencing court’s discretion to depart from the United States Sentencing Guidelines.
 
United States v. Morelli, United States Court of Appeals for the Third Circuit (reported at 54 F.3d 770).
Appeal from a civil forfeiture order, involving questions including the right to a hearing before such an order is issued.
 
WOW!! This man knows how to try a case. According to his attorney profile he has tried over 60 cases. That’s phenomenal. What most people don’t realize is that 90% of cases settle. Depending upon the area of law, some attorneys rarely try cases. Mr. Hammer was a federal prosecutor. When I was in law school, my criminal law teacher was a federal prosecutor. All I can say is I’m glad I wasn’t the defendant she was prosecuting! Given his extensive background, I wouldn’t want to have to be cross examined by him. Former prosecutors don’t play around when it comes to trying cases! I didn’t realize RDR has such a heavy hitter on board! 
___________________________________________________

Ok to be fair here is the run down on Dale Cendali:
Dale’s practice focuses on copyright, trademark, patent, and trade secrets law, as well as defamation, the right of publicity, false advertising, privacy, and similar areas. From cases involving cutting-edge issues of new technology, to entertainment, to core branding and merchandising disputes, Dale has successfully represented domestic and foreign companies in litigation involving a wide range of intellectual property assets, products and services. Dale also counsels clients regarding the acquisition and retention of intellectual property rights (including Internet issues) and litigates disputes concerning such rights. 

Dale chairs and has chaired numerous bar committees and lectures and writes prolifically on intellectual property, media, and litigation topics. 
Illustrative Professional Experience
• Arguing before the U.S. Supreme Court on behalf of Twentieth Century Fox in Dastar v. Fox, a copyright and Lanham Act case involving General Dwight D. Eisenhower’s acclaimed memoirs, having won trials below on liability and damages
• Representing Victoria’s Secret in the U.S. Supreme Court with partner Walter Dellinger in a case of first impression interpreting the federal dilution statute, and leading to Dale’s appointment on the International Trademark Association Presidential Select Committee that helped rewrite the federal dilution statute and her key role in preparing for the Congressional hearings regarding the bill
• Winning summary judgment in a high-profile copyright and trademark action that accused J.K. Rowling, the author of the Harry Potter books, of plagiarism, as well as $50,000 in sanctions, and an award of attorneys’ fees because of claimants’ fabricated evidence
• Winning a landmark trial on behalf of the Martha Graham Dance Center, in a case that preserved Martha Graham’s dance legacy in a bitterly contested intellectual property battle against the heir to Martha Graham’s estate
• Representing MySpace.com in a high-profile copyright action involving the allegedly improper use of music on the widely popular MySpace social networking site, brought by the largest music company in the world, Universal Music Group Recording , Inc. (UMG)
• Representing Nuance Communications, a leading provider of speech and imaging solutions for businesses and consumers around the world, in several patent infringement, copyright, trademark, contract and trade secret misappropriation actions involving speech recognition and related technology, including cases in the Eastern District of Texas and in private arbitration
• Securing a favorable settlement for License Management Co. during the second week of an expected two and a half week bench trial in the District of Connecticut in a case involving breach of fiduciary duty and corporate opportunity claims, and license rights to the world-famous “Swiss Army” branded products and trademarks
• Leading an O’Melveny team in obtaining a unanimous federal jury verdict in favor of the American National Theatre, a nonprofit theatre organization in New York, in a trademark infringement case brought by ANTA, another nonprofit theater organization, over the right to the American National Theatre mark
• Successfully representing J.K. Rowling in numerous intellectual property disputes nationwide, including a recently filed lawsuit against RDR Publishing concerning the proposed publication of an unauthorized Harry Potter “lexicon” and a highly publicized copyright infringement action brought against the New York Daily News involving the premature release of excerpts of the fifth Harry Potter book
• Representing Honeywell in class actions premised on fraud on the trademark office involving the famous Honeywell Round trademark for thermostats
• Representing and advising Lionel LLC in all of its intellectual property litigation, and in developing, protecting and enforcing its intellectual property rights, including assisting to secure the reversal of a $40 million adverse judgment on trade secret claims that threatened the company with bankruptcy, and successfully resolving a high- profile trademark dispute against Union Pacific train line
• Successfully representing Twentieth Century Fox in a high-profile copyright, false advertising, and breach of contract lawsuit against Marvel Comics, Tribune, and Fireworks concerning the movie X-Men and television show Mutant X
• Winning summary judgment for Twentieth Century Fox in a copyright infringement matter brought by the purported owner of the photograph allegedly used to create the “I WANT TO BELIEVE” poster in Fox Mulder’s office on The X-Files
• Successfully representing Time Warner Entertainment and related companies, such as Time, Inc. and Home Box Office, in a variety of matter including a major fraud in the inducement case and the successful defeat of a preliminary injunction involving Time’s expansion of its “Real Simple” line of products
• Successfully defending the Gallo Winery from false advertising charges brought by Heublein in a case that involved the extensive use of survey experts
• Successfully representing various major companies in arbitrations involving numerous contractual issues involving hundreds of millions of dollars
• Obtaining transfers of domain names for numerous companies pursuant to both the ICANN dispute resolution procedures and the Anticybersquatting Consumer Protection Act and counseling on Internet issues in general
Defeating as a prior restraint O.J. Simpson’s attempt to enjoin broadcast of the Simpson/Brown wedding video and later obtaining a demurrer as failing to state a claim under privacy and unfair competition law.

Both attorneys are experienced. However when it comes to actual trial experience, Hammer has a lot more. Why is this important? Trying a case and representing a client are two separate things. I’ve represent over 50 clients in the last year. None of the matters has gone to trial. Some time being a good lawyer means merely negotiating a good outcome. Like I said most things settle before going to trial. Now from what I actually counted, Ms. Cendali has actually only won 3 cases. Please check my math. Look for works like verdict, won trial, acquittal, conviction (these indicate trial occurred and concluded) not summary judgement or settlement. FYI the terms “successfully representing or defending” doesn’t mean a trial actually occurred. For instance, the Rowling suit against Stouffer was dismissed prior to trial; but that is considered successful defense. Anyway, this will be very interesting. I’m sure nothing Cendali tries to pull at trial will phase Hammer. No doubt he’s seen it so many times it’s boring. 

Posted in Historical

Code 632

This was way better than the Da Vinci Code!!!!! So a Codex is an old manuscript. I think specifically from the Middle Ages. 

Thomas Noronha is a professor of history and an expert crypotographer teaching at a university in Lisbon Portugal. He is hired to finish the research/investigation of a scholar (Toscano) found dead in Brazil under usual circumstances. It has to due with the scholar’s research on Christopher Columbus. 

MOLOC NINUNDIA OMASTOOS

It’s the code on Toscano’s papers that drives Noronha’s investigation. His investigation takes him from Lisbon to New York to Brazil back to Lisbon. He revisits history, the more contradictory parts, to determine who was man who supposedly discovered American, because it doesn’t seem Christopher Columbus was the man we thought. 

This book was awesome!! I liked it so much better than The Da Vinci Code. There were three main things I liked about it:

Main Character
The protagonist is very ordinary. He’s a professor who when the story begins is teaching hieroglyphics. He does have a flaw. He’s married and has a daughter with Down’s syndrome. His marriage has been falling apart since the little girl was diagnosed. His motivation for taking the job is that he and his wife struggle to pay their daughter’s medical bills. The American foundation that has hired him will pay him $5,000 a week and $500,000 when the investigation is complete. Noronha taking on this job is definitely a slippery slope. And he does pretty far down- adultery, family neglect, deception. On one hand I liked the character, but on the other hand I was a little bit frustrated with how naive the man was. I mean first off, the man whose research he was completing dies mysteriously. (I’d wonder what I was getting myself into). Then he has at least two people ask him did he had dealings with the American Foundation. I mean was he ever going to ask or check up on those folks? I mean seriously you’ve always got to be careful of people throwing big bucks at you. And seriously anytime a woman you are seeing on the side, up an vanishes after you dump her. Hello!!!! But before you get to that part, seriously have men never hear the expression “dangerous beauty?” I mean I’m sure the professor was a decent looking sort of chap but really, outstandingly gorgeous women don’t generally go for academics. That should have been his first clue something was up. I love it when you feel like you could just shake a character to death because they are being kind of dumb. I think what I liked about it most was that the character truly saw how futile all he did was. I mean he did it all for money, and in the end his money did him no good. He spent his time “being” so hurt about his daughter’s condition that he just let it destroy the relationships that matter. Unfortunately by the time he realized the value and importance of his daughter’s life, it really was too late. 

Plot
The plot advanced through historical research. What I liked is how the author took the reader through what historians typically do the verify ancient writing. You had to identify the writer, audience, motivations, bias, and prejudice. In many ways it was like the investigation I do when I work a case. I think I would have enjoyed excerpts of the actual books in the text; but I suppose that would have been impossible for the author to pull off. I mean it seems that the author did a lot of research, it would have been impractical for him to add all of that. I suppose I’ll just have to visit Portugal some day. I liked the history of the Kabbalah. I was nice to have something substantive to think about it rather than merely knowing Madonna and Britney Spears are into it. It was a lot easier to follow the unfolding of the mystery than it was in the Da Vinci Code. I mean the angrams, riddles, and such were annoying. I mean heck there was no way to figure stuff out with the characters as the story progress. But in this book as Thomas was taking me through the history the clouds were breaking for me. 

Research
I’m thinking of giving out a man of the year award. Jose you’re going to be the first to receive it!! The language of flowers!!!!!! Excellent. I don’t think I’ve ever met a man (figuratively as I have never actually met the man) who knew that back in the day men and women used to communicate using flowers. When Thomas finds those flowers—- that’s got to be the best break up scene in all of history!! It was classy and dignified and so intellectual! I’m stealing this idea for when I have to break up with someone. Why yell an scream when you can just leave foxglove and yellow roses. In general I was impressed by the level of scholarship that went into this book. You readers know I can be somewhat anal when it comes to historical facts. I checked some stuff online. A great deal about Columbus really isn’t known. In an interview, the author said he wanted to get information that was not widely known out in the public. And this story certainly did that. So maybe we’ll see a history channel special about who Christopher Columbus really was.