Legal Research Blog


Episode 13: The Dumb Difference Between Copyright and Trademark

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I’m in snowy Dayton, Ohio, visiting LexisNexis to work on our TopForm acquisition this week (read: podcasting along unless a miracle happens). Why not cure my Season Affective Disorder by subscribing to the podcast and rating us five stars on iTunes?

1. Business Insider discusses why Dumb Starbucks is probably going to be considered trademark infringement. Spoiler alert: it’s because someone doesn’t understand that Section 107 doesn’t apply to trademarks. Ouch. Here’s Dumb Starbucks’s response to the trademark infringement issue:

By adding the word “dumb,” we are technically “making fun” of Starbucks, which allows us to use their trademarks under a law known as “fair use.” Fair use is a doctrine that permits use of copyrighted material in a parodical work without permission from the rights holder. It’s the same law that allows Weird Al Yancovik to use the music from Michael Jackson’s “Beat It” in his parody song “Eat It.”


2. I was torn about whether to include this story but I’m going to include it because reasonable minds can differ. @ouij points us to this ATL story discussing a legal writing professor with a fairly complicated list of local classroom rules students must follow lest they suffer letter grade penalties. While I agree this is harsh, I can imagine the frustration caused by violations of some of these rules. Curious to see if our listeners actually think the prof’s conduct is egregious. I can be swayed. (But I’ve also taught undergrads, so I feel like I have a lot of built-up hostility on the issue of technical violations.)

3. This byline comes courtesy of Kat Chow — forget spring loaded shotguns and get yo’ self a Big Mouth Billy Bass. A fishing supply store in Minnesota recently found its door locks broken and its singing, motion-sensing, mechanical fish knocked onto the ground. The strange part? The store’s cash and valuables were within eyesight.  Authorities believe the burglars were frightened when the fish started singing and fled the scene. Can’t say I blame them. Those things are creepy.

4.  We’ve got a pretty solid collection of bobblehead SCOTUS justices at Fastcase and now so can you! The Green Bag announced it’s going to start hosting lunchtime Twitter quizzes to award these bad boys. If you win one and have the option of picking it up from the O’Melveny & Myers office, I strongly recommend you do it. There’s something seriously amusing about walking into a stuffy D.C. office building, telling the person at the front desk you’re there to see O’Melveny & Myers, and then stopping at the front desk to pick up a toy.

Please also take note of our subreddit at Feel free to submit stories there or vote on the stories you’d like to hear us discuss that day. You can also email us at podcast /at fastcase /dot com.

Thanks for listening!

Episode 12: Grand Jury Decides 22.5 Cases Per Mile

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Today’s podcast brought to you courtesy of a tiny, cute boutique hotel in Chicago and my video gaming headset. Why not reward my dedication by subscribing to the podcast on iTunes and rating us five stars?

1. Sheldon Krantz, former DLA Piper partner, wrote a piece yesterday for the ABA Journal about America’s failing access to justice initiative. Mr. Krantz leans more toward mandating pro bono hours and allowing non-lawyers to practice in limited instances, but I disagree to a certain extent. My thoughts are actually summarized by the first comment which I’m reproducing here:

While I agree that attorneys should provide pro bono, and provide as much as they are capable, we have to realize that access to justice is a societal issue, and finding a solution shouldn’t fall on the shoulders of attorneys alone.  As attorneys, providing pro bono services is the very best way we can help.  But it won’t solve the problem, and articles that put the entire problem on attorney shoulders help create the illusion that it’s an attorney problem, and not a societal problem.  Personally, I provide pro bono services because it’s important to me – I grew up poor, and my own family members have no one to help them.  I’m also a young associate in a small firm, however, so I have to balance my duties and the firm’s needs, and I only take pro bono cases through a local volunteer lawyer’s project.  The unfortunate reality in our area of the city is that a large proportion of the folks who come in for a consultation need pro bono or low cost services, and I can’t pick and choose among them.  Sometimes all I can do for these folks in their consultation is help them figure out what their issues are and provide them with basic information and the contact information for the legal aid/clinic/vlp services available in the area.

Pro bono from attorneys is part of the fix, but it is not THE fix.  Pretending it is provides an opportunity for the rest of society to pretend it’s the “lawyer’s problem.”

2. A North Carolina grand jury recently managed to hear 276 cases, indict all of them, and they were able to do it in a mere 4 hours! That means they spent an average of 52.2 seconds for each case (one of which was a voluntary manslaughter case), during which time they presumably heard evidence, asked questions, and made a decision. To put that in more amusing terms, because why not, assuming the average person walks at a rate of 4.5 feet per second, if this jury would have been walking while deliberating, they would have decided about 22.5 cases per mile.

3. My data was stolen in the now-infamous Target breach so I’ve been following the story. Now it seems that the breach can be tracked back to a heating-and-air-conditioning contractor. Tsk.

4. “You know where there’s a lot less crime? There’s a lot less crime in China.” Quote from Joel Pruce, a post-doc at University of Dayton, on a human rights fellowship. The ABA Journal discusses the recent encouragement of Dayton authorities to install cameras onto large buildings and the like. The teaser story is worth some consideration as well — using airplane wing-mounted cameras to monitor in-progress crimes. The future is now. The future is still creepy.

Please also take note of our subreddit at Feel free to submit stories there or vote on the stories you’d like to hear us discuss that day. You can also email us at podcast /at fastcase /dot com.

Thanks for listening!

Episode 11: NSA Only Cares You’re an Attorney if the Client is Indicted?

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Former Fastcase intern and all-around sharp legal mind Aaron Kirschenfeld joins us on the podcast today. Aaron didn’t get his Merit Award Scholarship by not subscribing to The Law Review Podcast on iTunes or not giving it a 5-star rating, if you know what I’m saying. Note that this is the first podcast we’ve done via Skype and it’s a little grainy. I’m hoping we can get that squared away before the next Skype episode. Apologies about that.

1. I think we’re going to need a Missouri bumper for the cast. Missouri AG Chris Koster filed a suit Monday alleging California state would violate the Commerce Clause by banning the sale of eggs from hens housed in small cages. ABA Journal commenter Virginia Bachmann sums up my (naive?) thoughts: don’t like CA laws? Don’t sell to CA.

2. The Nation has a neat article discussing the potential violations of attorney-client privilege that arise by virtue of government wiretapping. The article addresses a weird quirk I didn’t know about whereby although intelligence agents must stop recording and note when conversations with suspects’ attorneys begin, they are only required to do so when the suspect is indicted. If they’re not indicted, apparently the privilege “minimization” protocol isn’t triggered. I suspect Aaron and I will spend the majority of the literature review section discussing this odd quirk.

3. Jacob Gershman at The Wall Street Journal discusses the overwhelming tendency of insider trader defendants to remain silent. I talk about my [relatively limited] experience watching defendants put on the stand.

4. The Governance Lab brought to our attention that the Government Printing Office partnered with the Library of Congress today to make summaries for House bills available to download, in bulk, in XML format. This will give third parties (of which, spoiler alert, Fastcase is one) the ability to download reports prepared by the Library of Congress’s Congressional Research Service intended to limn (yeah, I said it) the implications of the legislation

Please also take note of our subreddit at Feel free to submit stories there or vote on the stories you’d like to hear us discuss that day. You can also email us at podcast /at fastcase /dot com.

Thanks for listening!

Episode 10: High Fives, High Beams, High Courts

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I’m joined today by Fastcase black letter content guru Deb “Kat Chow” Letz who says that you should subscribe to The Law Review Podcast on iTunes or she’ll be very cross with you.

1. Slap hands, bro. Courtney Allen Curtis [D], a member of the Missouri House of Representatives, recently introduced House Bill No. 1624, amending the state code to read:

The “high five” is selected for and shall be known as the official state greeting in the state of Missouri.

Allegedly it’s sort of a joke, but I hope it passes anyway. Rep. Curtis can reportedly be seen slapping hands around the floor of the House with some frequency.

2. Speaking of fun Missouri laws, a federal judge in the Eastern District of Missouri thinks it’s possible that defendants could prevail on a claim that flashing high beams is an expression of protected speech. This is interesting because we’re really talking about an act intended to bring someone into conformity with the law, which often gets statutory carve outs in state statutes. I also wonder about implications of things like DUI checkpoint warning apps (arguably a different analysis as these people could not really be brought into conformity with the law but rather can just try to avoid detection?).

3. The Justices have been giving talks all over the country during the SCOTUS recess and Justice Alito said yesterday in Florida that he’s cool with people hating on the Court. “There is a reason why the Constitution gives federal judges life tenure. We are supposed to do our jobs without worrying whether our decisions are pleasing to anybody.” Feeling whole-heartedly seconded. Coming from a practice in Pennsylvania state courts, I’ve felt the struggle of elected judges who clearly feel the pressure of a popular election. Keep calm and cert on, Justice Alito.

4. Eugene Volokh writes about the odd practice of PA trial court judges asking intermediate appellate courts to deny appeals in the absence of written opinions. Typically, the language is along the lines of, “This Court respectfully requests that the instant appeal be denied for the following reason(s):” I used to see this all the time and I just brushed it off as typical Pennsylvania attorney verbosity. Curious whether anyone actually thinks this is an inappropriate prayer given that in PA, criminal defendants have a right of first appeal.

Please also take note of our subreddit at Feel free to submit stories there or vote on the stories you’d like to hear us discuss that day. You can also email us at podcast /at fastcase /dot com.

Thanks for listening!

Episode 9: Mini Preview of LegalTech and ReInvent Law

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I made a commitment to read on the air the first five-star review left after you subscribe to The Law Review Podcast on iTunes (reserving the right to make editorial edits as I deem necessary). Ed Walters joins me today and gives us a preview of the upcoming LegalTech and ReInvent Law conferences.

1. Will you have the chicken or the steak? It’s a question that could have saved a lot of money as the Indiana Supreme Court begins to consider whether it was proper for the Indiana Court of Appeals to fine a religious home-schooling support group for failing to provide an alternative dinner to a child with a severe allergy to chicken. When she filed a complaint with the Indiana Civil Rights Commission, the child was expelled from the nonprofit group. Is this a case of administrative overreaching in the context of an organization not acting like a school (framing via Petitioners) or is it disability discrimination and retaliatory treatment (framing via Respondent)?

2. Via Aaron Kirschenfeld (@kirschsubjudice): Aaron points us to a NYTimes article discussing the recent Supreme Court of New Jersey argument regarding whether it was proper for a prosecutor to introduce evidence of the defendant’s rap lyrics at trial.

3. The Ninth Circuit recently held that bloggers have the same First Amendment defamation protections as real, honest-to-goodness journalists, finding fault with the district judge’s requirement that the defendant produce “evidence of her status as a journalist.” We talk a bit about this opinion during the literature review.

Please also take note of our subreddit at Feel free to submit stories there or vote on the stories you’d like to hear us discuss that day. You can also email us at podcast /at fastcase /dot com.

Thanks for listening!