'Wrongful copying' topic of Loyola's IP Theory Colloquium

Shyamkrishna Balganesh, assistant professor of law at the University of Pennsylvania Law School, presented "'Wrongful Copying': Flexibility and Pluralism in Copyright Law" during Loyola's IP Theory Colloquium.

Loyola's Center for the Study of Law and Genocide hosts forum on recovery of looted art

Loyola Law School's Center for the Study of Law and Genocide will host "Remnants of Genocide: Reclaiming Art and other Heirlooms Lost in Atrocities" from 10 a.m. to 4:15 p.m. on Friday, March 11 on its downtown L.A. campus. Top international experts in art retrieval will discuss the recovery of art confiscated by Nazis during World War II and the reacquiring of cultural treasures taken during the Armenian Genocide, as well as art restitution in general. Examples of reclaimed art will be on display.

The lunchtime keynote address will be delivered by Mark J. Geragos, Esq., principal, Geragos & Geragos, Los Angeles; and Brian S. Kabateck, Esq., managing partner, Kabateck Brown Kellner LLP, Los Angeles. The two attorneys have been involved in the recovery of artifacts confiscated during the Armenian Genocide.

The first panel, "Nazi Looted Art Recover," will feature speakers Donald S. Burris. Esq., partner, Burris, Schoenberg & Walden, LLP, Los Angeles; Monica Dugot, Esq., senior vice president and international director of restitution, Christie's, New York; and Thomas R. Kline, Esq., partner, Andrews Kurth LLP, Washington D.C. Professor Stan Goldman, director of Loyola's Center for the Study of Law and Genocide, will moderate.

The second panel, "The Armenian Genocide and Recovery of Looted Cultural Objects," will feature Jason Felch, staff writer at the Los Angeles Times and co-author of Chasing Aphrodite: The Hunt for Looted Antiquities at the World's Richest Museum, which will be released in May by Houghton Mifflin Harcourt; and Heghnar Watenpaugh, Ph.D., associate professor of art history, University of California, Davis. The panel will be moderated by Michael Bazyler, professor of law and "1939" Club Scholar in Holocaust and Human Rights Studies, Chapman University School of Law and Visiting Professor of Law, Loyola Law School.

The final panel will examine other issues in art restitution. It will feature speakers Sermid Al-Sarraf, Esq., executive director, International Institute for the Rule of Law, Baghdad, Iraq & Los Angeles, CA; Seth M. Gerber, Partner, Bingham McCutchen LLP, Los Angeles; MaryKate Cleary, manager of historic claims and research, Art Loss Register, London, UK; and Lucille A. Roussin, J.D., Ph.D., adjunct professor and director, Holocaust Restitution Claims Practicum, Benjamin N. Cardoza School of Law, New York.

The day will end with a reception at the Fine Arts Building, 685 South Figueroa Street, Los Angeles, CA 90017.

Co-sponsors of the event include the International Law Society, the Entertainment Law Review, the Jewish Law Students Association and the Armenian Law Students Association.

Loyola hosts debate on healthcare mandate

On Wednesday, March 9, Loyola hosted a debate about the constitutionality of the individual mandate in the Patient Protection and Affordable Care Act ("Affordable Care Act"). It featured two renowned constitutional law scholars: Adam Winkler, professor of law at UCLA, and Robert Pushaw, the James Wilson Endowed professor of law at Pepperdine Law School.

The debate focused on the question of whether the individual mandate is a constitutional exercise of Congress' Article I power to "regulate commerce among the several States" and to "make all Laws which shall be necessary and proper" pursuant to this power. The individual mandate is the part of the Affordable Care Act that has drawn the most attention and controversy, legally and politically. Although challenges to the mandate have been raised on numerous legal grounds, the commerce clause issue seems to have the greatest legal traction so far. And Congress expressly relied on this power in enacting the law.

This issue has led to a split in the courts: Of the five district courts that have considered challenges on the merits so far, three have upheld the Affordable Care Act, while two have ruled that the mandate is unconstitutional. The most recent decision came on March 8th by a Florida District, which struck down the entire Affordable Care Act because of its finding that the mandate was unconstitutional and could not be severed from the rest of the law. Appeals are pending in the Fourth, Sixth, Eleventh, and District of Columbia Circuits. Everyone expects the issue to ultimately reach the U.S. Supreme Court for final resolution.

In the meantime, the issue has also generated a great deal of scholarly debate. Prof. Pushaw has argued that the mandate is not a constitutional exercise of the commerce power because the individuals being regulated have not voluntarily engaged in "commerce" even in its broadest sense. Prof. Winkler, on the other hand, has argued that the mandate is a "necessary and proper" part of Congress' larger scheme for effectively regulating health insurance under the Affordable Care Act; and regulating health insurance has long been understood to be a legitimate exercise of the commerce power. During the debate, Professors Pushaw and Winkler presented two very different visions of the commerce clause power, as well as coming to very different legal conclusions about the constitutionality of the mandate. They seemed to agree on one thing, though: the unpredictability of the Supreme Court on this issue. No one wants to make any firm predictions - we'll all just have to wait and see. To view a recording of the debate, click here (RealPlayer required).

The panel was moderated by Brietta Clark, professor of law at Loyola Law School, Los Angeles. The event was co-sponsored the student chapters of the American Constitution Society and the Federalist Society, and organized by student leaders Jason Campbell, Elian Dashev and Billy Tanenbaum.

Faculty workshop series presents Prof. Lee Fennell

Lee Fennell, professor of law, University of Chicago Law School, presented "Property and Precaution" during Loyola's Faculty Workshop Series.

A Critical Assessment of the New Obama Executive Order on Detention

By Professor David Glazier

The White House released an Executive Order (EO) yesterday establishing new administrative review procedures for those currently held at Guantánamo and not actually being criminally prosecuted. The order has generated a wide range of responses. Attorneys representing Guantánamo detainees and organizations like the ACLU, which contest U.S. legal authority to indefinitely detain anyone, are predictably upset that the Obama administration would give new life to this policy.

Commentators like Brookings' Ben Wittes, who have argued for statutory authorization of indefinite detention with little apparent concern about whether that would comport with either the Constitution or international law, are generally pleased. I fall into a seemingly lonely middle ground, recognizing that the new EO modestly improves U.S. policy but disappointed that the administration failed to seize the opportunity to solidly ground its conduct n the law of war (LOW).

The key assumption underlying the EO is that the United States remains in an armed conflict with al Qaeda and the Taliban, justified under international law as self-defense in response to 9/11 and authorized under domestic law by the September 18, 2001 Authorization for the Use of Military Force (AUMF). Many critics still contest this view although it was settled as a matter of U.S. law by the Supreme Court's decision in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), effectively holding the AUMF to be the functional equivalent of a declaration of war and authorizing exercise of such "fundamental incidents" as indefinite detention of adversarial fighters.

You've got mail--but no privilege

By Dean Victor J. Gold

Evidentiary privileges protecting communications with your lawyer, spouse, doctor, clergy, psychotherapist, and others apply only if you intended those communications to be confidential. But be wary of sending any of these folks an email from your work computer or a smartphone supplied by your employer. A recent decision by the California Court of Appeals suggests that communications to and from such devices are not privileged.

In Holmes v. Petrovich Development Company, ---Cal.Rptr.3d---, 2011 WL 117230 (Cal.App.3d, 2011), an employee brought a wrongful termination action against her employer. During her deposition, plaintiff was questioned by the company about emails she sent to her lawyer using the company's computers. She objected, claiming that the emails were protected by the attorney-client privilege. The trial court overruled her objection, and the Court of Appeals agreed, holding that the employee did not intend the emails to be confidential since (1) the computer on which they were sent belonged to the company, (2) the company advised its employees that emails might be monitored, and (3) the employee knew of this policy and agreed to it. The Court of Appeals rejected as immaterial the employee's understanding that the company did not, in fact, monitor employee emails, reasoning:

Just as it is unreasonable to say a person has a legitimate expectation that he or she can exceed with absolute impunity a posted speed limit on a lonely public roadway simply because the roadway is seldom patrolled, it was unreasonable for [the employee] to believe that her personal e-mail sent by company computer was private simply because, to her knowledge, the company had never enforced its computer monitoring policy.

For two reasons, the scope of this ruling is broader than might first appear. First, plaintiff did not lose her privilege because she was using a computer that happened to be owned by the very company who was to become her opponent in the lawsuit. Under the court's reasoning, confidentiality would have been lost even if her employer had nothing to do with the lawsuit. Holmes relies on section 952 of the California Evidence Code, which defines "confidential communication" between client and lawyer as one that is transmitted "by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation." Thus, there is no confidential communication even if the employer that owns the computer is just a disinterested third person. Second, the circumstances faced by the employee in Holmes are commonplace. Many, if not most, employers advise employees that emails sent from employer-owned devices may be monitored. This is because employers want to discourage personal use of company property and want to ensure that they retain the ability to police for serious abuses, such as the use of company computers for illegal purposes. But as in Holmes, most employers do not regularly monitor employee email because serious abuses are uncommon and the cost of regular monitoring is high. Most employees are aware there is no regular monitoring of their work devices and, consequently, use them both for work and personal purposes. This includes sending and receiving communications that employees expect are confidential. Holmes undermines this expectation.

The reasoning of the Holmes decision is questionable, based on a misleading analogy to the motorist who exceeds the speed limit on an unpatrolled roadway. In the case of the motorist, the pertinent legal question is only whether she exceeded the speed limit--her expectations concerning the chances of being caught are no defense. But in the case of a confidential communication privilege, the expectations of the client, spouse, patient, and penitent are key. If she had a reasonable expectation of confidentiality, the privilege applies. What is reasonable becomes, as always, a matter of weighing the applicable facts and circumstances. Those should include not just the fact that an email could be monitored, but also the chances that it would be. It seems likely that most employees would be surprised to learn that they cannot send a confidential communication to their spouse, lawyer, or doctor with an employer-supplied device.

Confidential communication privileges exist to foster relationships thought vital to society. Because the pertinent circumstances of Holmes are so common in the modern workplace, that decision poses a significant challenge to the efficacy of those privileges.

Claim by Tolkien estate vs. fictional work including J.R.R. Tolkien as a character: The work of Sauron?

By Professor Jay Dougherty

Recently there have been reports that the Tolkien estate has fired off cease and desist correspondence to Steve Hillard, the Texas-residing author of a self-published book called Mirkwood. Mirkwood is apparently a fictional work, perhaps Tolkienesque, in which J.R.R. Tolkien is a character. It appears that the gist of the assertions (which are reportedly asking that the book be enjoined and destroyed) is that it is an unauthorized commercial exploitation of Tolkien's name and likeness; in other words, a violation of his rights of publicity. This claim seems extremely weak, and it's surprising that it would even be asserted.

First, the decisional law and many statutes have pretty clearly established that one doesn't have a property right in his or her life story. The same can be said as to fictional works including a "real" person as a character, at least if they are not held out as being true (and even the small line of cases drawing that line are questionable). Some plaintiffs have argued that a work that has nothing to do with the person whose persona is used becomes a "commercial exploitation" of that persona. But books, films, songs, works of art, etc. are not the same as T-shirts and coffee cups. They are works of expression--speech protected under the Constitution. (A football videogame is currently being challenged, in part on an assertion that it is just a product, not "speech." See my colleague Jennifer Rothman's recent post about oral argument in that case.) Courts in different jurisdictions have used various approaches to address tension between the relatively new right to control commercial uses of persona that are not false endorsements. Most of those approaches should favor almost any expressive use that is not an advertisement pure and simple, although one of them---the most antagonistic to freedom of expression---looks at the elusive "primary intent" of the expressive defendant. The "Mirkwood" book doesn't appear to be being held out as true, and appears to be highly expressive and "transformative" (one of the tests applied in this context). The Tolkien estate should lose on that basis.

But their claim is weak for at least two other reasons. First, many states' laws, especially covering a right of publicity after the death of the person portrayed, expressly exclude from liability speech works such as books or films. In fact, if the estate were to assert the application of Texas law to this dispute, that law has such an exclusion: "A person may use a deceased individual's name, voice, signature, or likeness in: (1) a play, book, film..." Texas Property Code Section 26.012. But the dispute may not even have to reach that clear defense. The majority rule as to whether the right of publicity survives death is to look to the law of the state of domicile at the time of death of the celebrity. Mr. Tolkien lived in England when he passed away in 1973 (long before the descendible right of publicity was officially recognized in most states). England does not recognize a right of publicity, let alone a descendible one that survives death. See, e.g., Cairns v. Franklin Mint, 292 F.3d 1139 (9th Cir., 2002) (Princess Diana domiciled in England at time of death--no right of publicity claim under California deceased celebrity statute) (note that decision also affirmed a $2 million+ award of attorneys' fees to the defendant). Hence, a Texas court, if this dispute were to get that far, should toss this claim out at an early stage on a similar basis, too.

We all love Tolkien and his imaginative books. I loved the books and the films, and can't wait for the new The Hobbit films, in production now. I happily pay for them, and will continue to do so. He was a genius, and his heirs deserve to benefit from that. But he is also iconic and forever intertwined with certain types of fantasy literature. That he is now a character is such a work should be celebrated--not threatened with Sauronian attacks and destruction!