ABC v. Aereo: the Supreme Court will reverse the Second Circuit

Tomorrow is the oral argument in the Aereo case.  There is a good reason why the Supreme Court will reverse the Second Circuit. Moreover, it has already indicated that it will do so when it granted cert.

First, the reason for the Supreme Court reversal: the 2d Cir. Opinion in Aereo is “nuts,” as one respected West Coast academic called it last year at the 21^st Annual  Fordham IP conference.  

Of course, there are many more detailed arguments in the various briefs in the Supreme Court.  Moreover, that is not to say that there are no arguments on the other side.  Very clever people have in fact come up with them. In fact, we will go through all the arguments in the last copyright session on Friday, the 25th, of the Fordham IP Conference, April 24-25, fordhamipconference.com 

Second, how has the Court has already indicated that it will reverse when it granted cert.? Justice Alito had recused himself which meant that the Court  was left with a possible 4-4 tie. They could have waited to grant cert. on the 9th Cir. case or ones in the First Circuit or D.C. Circuit.  If there was any chance of a tie, that would have been the prudent thing to do because after a tie they could not let the situation remain where there are injunctions in some areas of the country and not others. They would have to take another case. 

Before risking a massive waste of judicial time, I think the CJ Roberts and his colleagues must have been confident that there were five votes on one side.  The question then is which side.  I don’t see five justices being comfortable enough with the correctness of Aereo’s position on just the cert. papers.   But I can easily see five justices comfortable with voting to reverse before granting cert. 

I told my students, and anyone else who would listen, after the Second Circuit decision came down that the Supreme Court would grant cert. and reverse, assuming no en banc rehearing. Alito’s recusal just makes me even more confident that this will happen.  

HOLD ON! It now turns out that Alito is no longer recusing himself in ABC.  Some might think this indicates he has come back to break a tie.  I don’t think so.  He has also rescinded his recusal in POM Wonderful v Coca Cola.  There was no tie issue there as Justice Breyer had also recused himself leaving only seven justices.  In fact, by rescinding his recusal Alito has made a tie possible in that case.  (The Court is very likely to reverse the 9^th Circuit In POM Wonderful, with no tie likely.)  In any case, when the Court granted cert. in Aereo they did not know Alito would rescind his recusal. So I think my analysis stands.

I have a pretty good record on predictions.  I don’t predict every case but when I do I have only been wrong once, in New York Times v. Tasini, 533 U.S. 483 (2001).  In Grokster, MGM Studios, Inc. v. Grokster, Ltd., 45 U.S. 913, after the District  Court for the Northern District of California  found for Grokster in in 2003, I stated at the next Fordham IP Conference that I hoped that the 9^th Circuit would affirm because then the Supreme Court would grant cert. and reverse.  After the 9^th Circuit obliged me and affirmed, I guaranteed in a talk at the annual meeting of the Copyright Society of the U.S.A., that the Supreme Court would grant cert and reverse.  At the time I encountered numerous people skeptical about the ability to predict the Supreme Court, and my Grokster predicition in particular.  As a result, I had numerous bets for steak dinners related to my prediction with a variety of copyright players including ones from EFF, the Copyright Society, the International Intellectual Property Alliance, and a former congressman from northern Virginia.  So far, no one has paid up.

If the Supreme Court does not reverse the Second Circuit, it would mean that there has been a serious disturbance in the Force.  I don't expect that will happen..

Read More

Forthcoming posts: Recent IP cases and tattoos and IP

Please check later for future posts on recent IP cases and tattoos and IP.

Read More

A-Rod, “Squealing” and the Code of Silence

It will be interesting to see the reactions to a 60 Minutes report alleging that A-Rod leaked information about drug-taking by the Brewers’ Ryan Braun and the Yankees’ Francisco Cervelli. A-Rod has denied the allegation but, assuming that it’s true, how are people likely to react? And how should they react? 

Well, it used to be considered wrong to “squeal” on a member of one’s group. Think of the Blue Wall of Silence among the police, the omerta of the Mafia, and every teenager’s knowledge that it is wrong to be a “snitch.”  Undoubtedly, people in many other sectors would agree, including baseball players.  John Harper of the Daily News reports that “the view from inside the clubhouse is that doing PEDs doesn’t compare to ratting out other players, particularly a teammate.”   

This “Honor Code” is not new.  It has been passed down for generations.  I can see loose-lipped cavemen being clubbed to death for inappropriate grunting and pointing.  In fact, a forthcoming study by a noted neuroscientist at Rockefeller University suggests that “honor among thieves” -- which would prevent ratting out one another – is actually hard-wired into our brains.

Hard-wired or not, what does this Code accomplish?  At one level, it supports solidarity and openness among people in the group, and ostensibly this is beneficial.   But it also underlies a combative “us against them” mentality that is not so beneficial.  Moreover, it allows colleagues to get away with punishable, if not criminal behavior and avoid public exposure.  Thus even if it is a “benefit” to a select group, it could be positively harmful to a large number of people outside the group. From a utilitarian perspective at least, one might conclude that the Code should not exist.  

Moreover and perversely, the Code makes the “whistle blower” into the bad guy, while the perpetrator of indisputably bad acts becomes the aggrieved, good guy.   For instance, let’s take an iconic example.  Without touching at all on the religious aspects and significance of the biblical story of Adam and Eve or on the perceived misdeeds, what if Adam had sought out a meeting and “ratted out” Eve?  Would that fact alone have changed the historical perception of Eve, and for that matter, Adam?  

So, looking at the overall picture anew today, is this code of silence something people should publicly embrace or argue against? In fact, have there been any public statements against it?  Maybe, if it is hard-wired, we should accept it.  

There still remain many questions, however.  Would one want to see the Code adopted by a brother or sister, one’s children, friends?  Is there a gender difference on how the Code is perceived?  Would a mother give the same advice to her children as the father would?  Would parents give the same advice to sons and daughters?   Does income matter?  What about ethnic origin?  Is this something about which many of us remain conflicted?  Or, if there is conflict, is it because some of us are for it and some against? 

And how does A-Rod fit into all of this?

·         Some criticize his self-interested motive.  But isn’t self-interest a motive for many, if not most leakers?   Isn’t there almost always personal aggrandizement for the leaker and/or the reporter, and consequent better ratings or sales for a media outlet?  Are those morally better motives than whatever A-Rod’s motive may have been?

·         What if A-Rod leak’s leak informed the MLB for the first time that these two players used PEDs?  This type of disclosure has been an accepted reason to reduce prison sentences and players’ suspensions.  Perhaps telling the public something that the MLB already knew, and thereby causing personal reputational harm is less worthy. But don’t most people applaud whistle blowers who tell the public what the organization already knew, and that often causes serious harm to the people involved and their families?

·        The New York Times and some NGOs have applauded transparency.  Should they issue statements in support of A-Rod?

·         Would or should people be more upset with A-Rod’s revelations about his Yankee teammate than about a member of the Brewers?  Is the Code more tribal than universal?

How many people came to a quick and easy decision on how to view A-Rod’s alleged leak?   If we change the name of the leaker to the Washington Post, would people react differently or similarly?  

Many questions to think about.  Maybe too many. 

One thing is fairly certain, however.  Life is easier when things are black and white, and when we find it easy to quickly identify the good guys and the bad guys.  Of course, easier may not be better.       

Read More

In Memoriam: Joseph M. McLaughlin

Joseph M. McLaughlin:  Professor, Legal Author, Dean, Judge

Joseph McLaughlin died on August 8th. He was truly a remarkable man. “Larger than life” describes him personally, and also his impact on Fordham Law School and on many people, including me.

I would not be at Fordham if it weren’t for Joe (but please don’t hold that against him.)  He began hiring non-Fordham Law graduates on a regular basis for the first time.  While I was an AUSA in the Southern District, he called and asked me to leave that position and come to Fordham because he had an opening that he wanted me to fill.  He offered to get me out of my three-year commitment to the Office, but I did not want to get out of it and politely declined his offer.  Yet as fate would have it, just months after that call, a family situation required that I have more flexibility in my schedule and I asked him if I could come as a visitor for a year.  I have been here ever since. 

Joe had a remarkable personal and public presence, really more so than anyone else I have known.  Some of this was the result of a towering self-confidence, also more than anyone else I have known.  This undoubtedly resulted in part from, and was certainly justified by his outstanding achievements as a student, professor, legal author, dean and judge. 

Joe was dean during my first two years at Fordham.  He was very approachable and had an open mind on new ideas.  He also looked after me as a junior academic, volunteering advice on various aspects of academic life. 

Most importantly in my view, Joe as dean was instrumental in the transition between the old and the new at Fordham.  He had the vision that change was needed but also recognized that there was a lot of good in the old as well.  He had the leadership skills and respect that allowed him to make changes that the old guard would not have accepted from anyone else, and to hold onto things without objection from a new guard who would have liked to see them changed.  His ten years as dean prepared the way and made possible Fordham’s move to where it is today.

There are and will be many more testimonials to Joe.  They will go into more detail and be made by those who knew Joe much better than I did. They will also detail his impact outside of Fordham.   As far as Fordham goes, I think everyone would agree with Dean Feerick that “Judge McLaughlin has deservedly earned a place in the pantheon of Fordham Law greats. His influence on the Law School was as big as his personality. Fordham Law has lost a magnificent friend and alumnus.”  They would also agree with Dean Michael Martin that “Judge McLaughlin’s impact on the history of Fordham Law cannot be overstated. A passionate teacher, a confident and clear-sighted leader of the Law School, and of course an astute judge—he played so many roles in the legal profession, and he worked with such vivacity and joy. He will be missed by the entire Fordham Law community.”

People like Joe do not come around very often.  One more reason why he will be missed.

Read More

Why a Blog? Why Now? Why this Name?

          I have been thinking about writing a blog for a long time.  The idea fits well with one of my youthful career goals – becoming a newspaper columnist -- which arose chronologically somewhere in the midst of major League shortstop, novelist, and high school history teacher (combined if possible with high school baseball & soccer coach).     

I was actually “this close” to starting a blog about 15 -20 years ago.  A student who had been quiet up until then came up to me after class and said that it was important that I have an online presence – maybe a “zine” or diary.  He had even decided to help me along.  Amazingly, before even speaking with me he had bought the domain name, hughhansen.com, and had programmed and formatted the website himself.  He created various pages for it that had Latin-like filler text waiting for me to come along and replace it with my own.  But much to my regret, this extraordinary opportunity was never realized.  I hesitated too long and finally lost contact with him.  It was early days, preblogospheric, and I did not know anyone who had a zine or anything else like it, or who could technically create one.  Nevertheless, the idea remained in the back of my mind.

                So why did it take so long to start?   One reason is that I have trouble organizing my life, especially where there is a technical component.  Another reason is that I wondered whether I would have the time to do it properly.  Today, I still have problems organizing my life and I’m pretty sure that I don’t have the time to do it properly.   Nevertheless, I asked myself, “if not now, when?”  “Never” crossed my mind, but then in rapid succession so did “never say never,”  “nothing ventured nothing gained,” and finally, “perhaps I should try Twitter.”   Indeed, for a while tweets seemed to satisfy my need to set the world straight.  But soon I ended up having ideas, too long, complex and brilliant for 140 characters, which began spilling over into the custom-made tweet basin that I use. 

                Finally, I no longer could avoid what destiny clearly had in mind for me: “Hugh Hansen’s One Thing After Another Blog.”

Why this Name? 

“One Thing After Another” was the title of a Canadian newspaper column, and of a book that collected them in 1948. The author was Charles Bothwell Pyper, known to the world as C.B. Pyper but to me as Uncle Charley. He was my great uncle, my grandmother’s brother.  He was born in Belfast, moved to Canada at an early age, and drifted into journalism.  He served in the British Army during WWI and was seriously wounded.  Back in Canada he became an editorial writer and then a war correspondent covering the Spanish Civil War, the Russo-Finish War and then WWII “embedded” (to use a current term) with the Canadian army in Europe.  Sometime between the wars he was also a columnist.  He took on any and all topics, including the minutiae of day-to-day life in a self-deprecating, witty and insightful manner.  One review called the book a “volume of brilliant essays” and another stated that Pyper had been hiding his “literary light under an editorial bushel in a newspaper office.”  My uncle’s sense of humor, insight and wit remind me of Mark Twain.  I think if he had been writing in the U.S. he would have been recognized as a leading writer and columnist.   

One Thing After Another was the first adult book I read.  I was tremendously impressed with it and still am.  To this day my uncle remains an inspiration.   So naturally I would want to name my blog after his column.   The name also fits because my posts will be on relatively diverse topics like his columns. I added “Hugh Hansen’s  . . . blog” to the name to distinguish it from yet another “One Thing After Another . . .”, an online “diary about two lads and Eddie the dog” which seems to focus on recipes, pictures of the actual cooking and delicious-looking results.

What Will it Cover?

Most blogs seem to focus on one subject matter or area.  This is particularly true for those dealing with law.  This format makes sense.  For instance, lawyers and academics tend to specialize, and have little time for material outside of their areas.  Nonetheless, I intend to post things in a number of areas: IP law, some con law, other legal topics, and also a number of non-legal topics.  Readers of course can pick and choose what they want to read.

With regard to the law, I am a legal realist (lower case) and will be looking beyond, beneath and inside the doctrine in cases.  I will try to determine if something other than statutory language or case law might have driven a result.  To what extent will a holding in a case act as a binding precedent even for the same judge or judges in the future?  Similarly, how might other judges in the same or other circuits view the case, and to what extent might they follow it?  As you probably perceive, I am a stare decisis skeptic.

Also, I will be sharing my views on aspects of federal practice, particularly with regard to litigation.  I have been lucky to have observed many trials and appeals as a law clerk in the S.D.N.Y. and Second Circuit. I have been a litigation associate in a large law firm, tried a number of cases as an AUSA, consulted on cases here and abroad, and have analyzed countless cases as a teacher deconstructing what went wrong or right.  It would be unfortunate if I hadn't learned something from all of this.

Conclusion.

I am glad to finally start a blog.  I plan to have fun and hopefully produce something for readers to think about, whether they agree or disagree with it. I welcome comments but please remember, I am a sensitive lad.

Read More