Friday Links

We don’t know too much about the Criminals on the Run comic book series, but when we saw the cover of the seventh issue (published way, way back in 1949, we knew we had to run it here. As you can see, it features the most awesome crime fighting technique we’ve ever seen. There is really nothing more to say on this matter, no?

Here’s a fun case excerpt that we found from the early days of Internet cases: “In the colorful argot of computers, a ‘worm’ is a program that travels from one computer to another but does not attach itself to the operating system of the computer it ‘infects.’ It differs from a ‘virus,’ which is also a migrating program, but one that attaches itself to the operating system of any computer it enters and can infect any other computer that uses files from the infected computer.” United States v. Morris, 928 F.2d 504 (2d Cir. 1991).

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Thoughts on Practical Legal Education III

As you know, we have often commented upon practical legal education (including yesterday, when our own Frances Zacher remarked upon President Obama’s recent suggestion that law school be shortened to two years). This topic, of course, is in the news again, and Steph Kimbro of the North Carolina Law Blog offered her thoughts recently on this issue:

My concern is that if the law school length were cut down to only two years, more of the practical courses that do exist in the curriculum would have to be cut. The bar exam isn’t changing any time soon, then students would still be hard pressed to take all the substantive bar courses and the practice areas they are interested in only in two years. That may push the practical skills, legal writing, law practice management courses, incubators, clinics, mock trial, law review and many other extras further to the side.

Kimbro makes a good point. Law students, being practical, are going to maximize their time in school in order to prepare for the bar examination. Presumably, any reform in the length or substance of legal education would likely leave the historic first year intact. Students will still be called upon to take contracts, property, and criminal law, and learn historic concepts but the law of no jurisdiction in particular. The value of the first year – despite the lack of reference to any specific state’s statutes or cases – is that it introduces students to legal concepts and begins to train them to think like lawyers. The second year, of course, depending on one’s school, may be comprised of mostly electives, and the stereotype of one’s third year is that it is spent mostly on the golf course and/or seeking future employment. That is certainly not the case at all schools. However, perhaps it is time to transform the third year from electives and fluff into a thorough and comprehensive practice and advocacy program. As we have noted before, there is no reason for there to be a “gap” between one’s law school matriculation and the beginning of one’s practice in the legal profession (despite the fact that some states, like South Carolina, require mandatory courses “bridging the gap” between those two points). But why is there a gap in the first place?

If students are going to go into significant debt in order to obtain a law degree, they should leave school with more training than they have. The debate should not be about whether or not law school should be shorter but whether the surplusage of the third year should be transformed into something far more substantive.

Obama: Shorten Law School To Two Years

Here at Abnormal Use, we’ve blogged a lot about the future of legal education.  Specifically, we interviewed Rod Smolla, the now-former President of Furman University, who had thought a lot about the subject during his time at Washington and Lee University School of Law, where he led the effort to revamp the third year curriculum.  We also blogged about the value of a legal education, and whether or not students are getting their money’s worth and the unintended consequences of the high cost of a legal education.  We even proposed some solutions of our own, in the context of lawsuits being filed against lawsuits over the issue. Well, President Obama thinks he may have the solution:  nix the third year altogether.  As recently reported by The New York Times, our Lawyer in Chief made some surprising remarks in a town hall meeting at Binghamton University in New York.  His remarks, like our own discussions, were made in the context of the larger discussion about the cost of higher education – both in dollars and potential opportunity costs.  For the most part, when folks are in school they are not working, or at least most are not working full time.

The President summed up the issues quite nicely in his brief remarks, as quoted in The Times:

On Friday, he questioned the utility of a third year of classes and suggested that students use their final two semesters to gain work experience. “In the first two years, young people are learning in the classroom,” Mr. Obama said. “The third year, they’d be better off clerking or practicing in a firm even if they weren’t getting paid that much, but that step alone would reduce the costs for the student.”

He acknowledged that eliminating a third year could possibly hurt a law school’s finances and ability to maintain a strong faculty. “Now, the question is,” Mr. Obama said, “can law schools maintain quality and keep good professors and sustain themselves without that third year? My suspicion is, is that if they thought creatively about it, they probably could.”

It’s a tough issue.  We will continue to weigh in on it as we see developments, and bring you the perspective of other experts on the issue.  We’d love to hear your thoughts, as well.

(Stay tuned for some additional thoughts on this issue tomorrow).

Buckyballs: Back And Bigger Than Ever

Last year, we here at Abnormal Use reported on the Consumer Product Safety Commission’s efforts to ban “Buckyballs” because the spherically-shaped magnets apparently posed a risk of ingestion despite the product’s warnings. As you might recall, the company’s response to the draconian measures was quite humorous, illustrating how any product can be dangerous based on the CPSC’s logic. Unfortunately, Buckyballs ultimately lost its fight and found itself forced out of business. Now, Buckyballs’ founders are back with a new company, and they haven’t forgotten the CPSC.

Seemingly defeated by the CPSC over the small-in-size, magnetic Buckyballs, the new company is now selling large, magnetic balls known as “Liberty Balls.” Take that, CPSC. Certainly, large balls can’t pose the same risk of ingestion. Aside from being a slap in the face to the CPSC, the new product serves an even greater purpose. Liberty Balls are the fundraising linchpin for the continued fight against the CPSC under a program entitled, “United We Ball.” According to the company’s website:

Liberty Balls and Ball of Rights are seriously BIG MAGNETS with a seriously BIG MISSION: to support the legal battle of one individual against government absurdity overreach retaliation regulators and stand up for the rights of all Americans (that’s you.)

Because the fight against the CPSC is so important, Liberty Balls have been called by some (the company) the “most important balls in American history.” And, who are we to argue? We must applaud a company for standing up to the CPSC’s over-reach. Some may say Buckyballs has taken this fight a bit far. We here at Abnormal Use say keep going farther. We are always looking for new material.

(Hat Tip: Overlawyered;

Flexing Free Speech Rights With Your Index Finger – The Fourth Circuit and Facebook

Recently, our own Fourth Circuit Court of Appeals considered the First Amendment in the context of 21st century technology.  As you likely know all too well, Facebook has invaded most areas of our lives – it seems only appropriate that it envelop our jurisprudence, as well. As reported by The Washington Post, the Fourth Circuit has held that by clicking the “Like” button on a Facebook post a person is exercising his or her First Amendment rights. The case is Bland v. Roberts, — F. 3d —, No. 12-1671 (4th Cir. Sept. 18, 2013) [PDF].

The facts of the case are straightforward, but they inspire some good old fashioned eye rolling.  A Hampton, Virginia sheriff’s deputy was fired after he clicked “Like” on the Facebook campaign page of the candidate running against his boss.  [Sidenote:  Why would you do that?  This is a clear violation of the “silly plaintiff” rule.  But we digress.]  The fired employee, Daniel Ray Carter, sued, saying that he was fired for exercising his free speech rights.  The federal district court granted summary judgment against Carter on the grounds that clicking “Like” was not an actual statement, and thus, it did not rise to the level of protected speech. Both Facebook and the ACLU filed amicus briefs in which they disagreed with the district court.  The Fourth Circuit overruled the district court, and we believe rightly so.  Judge Traxler, writing the opinion, likened the “Like” to a political sign posted in a front yard.  Did Carter have the right to display a yard sign of his boss’s opponent on his front lawn?  Yes.  [Is it a good idea?  Different question.]  In our opinion, the district court not only got it wrong, but very wrong.  First Amendment jurisprudence makes it abundantly clear that non-verbal “speech” is protected.  The district court seems to have stepped back in time, forgetting some important precedent.

The Washington Post also had a nice article preceding the Fourth Circuit’s opinion, highlighting other disputes that have arisen from the use of social media in the workplace.  You can find that story here.

Do you “Like” the Court’s opinion?  What implications do you think it will have going forward?  Remember, the related issue of an employer’s ability to force employees to give up Facebook passwords is also still hanging out there.  A U.S. News report from April 2013 on that subject, outlining the lawsuits and proposed legislation, can be found here.

Friday Links

Above is the cover of Tom Clancy’s Splinter Cell: Digging In The Ashes, which we bring to you due to the sad passing of Mr. Clancy last week at the age of 66.We knew there had to be at least one comic book adaptation of the work of Mr. Clancy, and of course, there was. According to the Internet, this issue was a limited edition digital comic book published back in 2010. We weren’t big readers of Clancy’s work, but we loved the movies based on it. There was nothing in 1990 like The Hunt for Red October. Those were the days, no?

Did you read the New York magazine interview with Justice Scalia? If not, you can do so here.

Dogfish Head is making a beer made with moon dust!

Friend of the blog Steve McConnell, himself of the Drug and Device Law blog, compares a recent qui tam action to a famous scene from The Godfather II. How about that?

If you’re following the news arising from the various former members of the punk band Black Flag suing themselves, here’s the latest.

Abnormal Interviews: Daniel “Rudy” Ruettiger

Today, we here at Abnormal Use continue our  tribute to the 1993 film Rudy and celebrate its twentieth anniversary with a special edition of “Abnormal Interviews.” For this latest installment, we turn to motivational speaker and former Notre Dame college football player Daniel “Rudy” Ruettiger, the inspirational figure behind the film.  That’s right.  The Rudy Ruettiger.  You know, the Rudy Ruettiger, who despite his 5’6″, 185 pound stature,  walked-on to the storied Notre Dame football team from 1974-1975 back in an era when walk-ons were much less common place than they are today.  Yes, that Rudy. Rudy’s story, as told in the film, has served as an inspiration to many.  After speaking with Rudy for just a short time, we quickly learned that his story is more than a made-for-Hollywood tale.  Rudy is as inspirational to interview as his film is to watch and made us feel as if we should pull that brief back off of the partner’s desk and add a few more citations just to spice it up.  Without further ado, the interview is as follows:

NICK FARR:  Looking back now twenty years,  what are your thoughts on how the film has resonated with viewers?

RUDY RUETTIGER:  It’s interesting, it’s affected people spiritually in a big way because of the message of – nondenominational message, not a religious message, it’s a spiritual message of not giving up, getting up when you get hit hard, keep moving forward, don’t listen to the naysayers, persevere, be persistent.  That’s the message that comes through loud and clear through the movie.  In the last twenty years, I’ve heard many stories how the movie has really helped people.   One guy came up to me that had cancer and he used to the movie to get himself in a positive state of mind to help get himself cured.  You hear all these stories  you hear of kids hav[ing] misfortune, families hav[ing] misfortune and they use the movie wording to encourage them.  To me, the movie worked as I saw it.  The movie worked as I presented it to Hollywood and Notre Dame.  It wasn’t solely about me.  It was more about the journey of life, how we look at life, how we can changes our thoughts, our thoughts control who we are, so that type of thing.

NF:  How did the movie come to life?  How did you feel once you saw a representation of your life on the big screen?

RR:  I got my inspiration through a movie that I watched called Rocky. It inspired me  to do other movies like that. Where they needed to go I thought Notre Dame would be such an elite status in America for sports and academics and you break through that.  That’s an underdog story.  So I went out to Hollywood and started pitching that.  It took ten years to find – well, eight years to find someone to listen and in the ninth year, we started the process and the tenth year we got the okay to produce the movie through a company, Tri Star Pictures Columbia Pictures.  We went through a series of mistakes and misfortunes. . . . Notre Dame was a challenge.  They didn’t want Hollywood to come in. . . . Very, very, very tough sell, but it all came together at the end.  I think God has a special way of putting things together when you do the right stuff even though you make a lot of mistakes, you learn something.  You don’t live by them you learn from them and you move on.  And I think that’s how the movie happened.

NF:  With your story personally, starting out at Holy Cross, finding your way onto the scout team at Notre Dame, and being a “undersized player”, what was your source of motivation throughout that whole process.

Rudy: That’s a good question.  I entered the Navy after high school. [The Navy] changed my whole environment, my whole attitude of life basically because it –  I didn’t know I had a learning disorder, I was kinda put down, kinda bullied.  I was put in the category of the dumb kid.  To make a long story short, I chose to go into the United States Navy, I changed my whole attitude about who I was and had confidence.  And from there I went back to work . . . I didn’t know how to pursue Notre Dame even though that dream came back.  Holy Cross was the answer.  I never went to the people, my high school counselors . . . . I went to other people who believed in me.  They said Rudy that’s a great choice  A junior college is a great choice. You go there because at a junior college great people come around you.  They want you to win.  You succeed academically and then you transfer. It’s right across the street.  And that little junior college was exposed to me just by chance.  By chance for the first time in my life I went up to the Notre Dame football game, never had a ticket.  And I saw the junior college and said there’s my answer.  It’s right there.  So that’s kinda like it all happened and from a junior college of course I made the decision not to be a scholarship player but to be part of a football tradition.  So that changed my whole attitude.  I could be part of something.  I don’t have to start.  I don’t have to do all the things they say I need to do other than contribute to that football team.  And that was a realistic choice because that was real.  I go through a lot of disappointment of course and a lot of alienation because you’re dealing with elite coaches, elite culture, elite outreach and they don’t accept walk-ons because there were 145 scholarships at the time.  And I understood that.  So I just used my Navy attitude —- do what you want, do what you need to get done.  Find a way to do it.  Because of that attitude, it happened.  By doing your work.  Do what’s important.  Showing up and everything falls in place.

NF:  Tell us a little bit about Coach Devine.  I know that some people have said that in the movie he is  portrayed as maybe the antagonist but we understand that may have not actually been the case.

RR:  Exactly, you’re absolutely right.  Coach Devine, we sat down with Coach Devine and the writer, and they started to explain to him why he had to be the heavy.  We had to do composites of other coaches and his personality because we wanted to show the real realism of college coaching and the politics.  He agreed to do that because he saw the benefit of a guy like a Rudy that could benefit a football team.  He said,  “Absolutely.”  Not that he completely understood it, but he accepted it, and again, because of the movie, once he saw it, he understood it, and he accepted it again.  It was a courageous move by him I thought for him to accept that role. And, of course, Ara Parseghian – same type of person but yet at the same time he was a tough guy, too.  He gave me a chance to walk on.  So, saying all that, as you know sports today – it’s still the same, it hasn’t changed.  Walk-ons are more accepted today because of lower scholarship demand.  And walk-ons still contribute.  So that changes everything and there’s a lot of athletes walk on and play baseball, football, national football, NBA.  And there’s great athletes that use the movie Rudy to inspire them to keep working harder. How important is that chip on your shoulder? Kobe Bryant is a great example because he uses that movie to inspire him to work hard.  Knowing that he has talent but will have to work hard even though he  gets knocked down you gotta get back up so he uses that movie. All these guys relate to that.  There’s guys in the NFL as well. . . . So my point is – my whole point is the movie p represented the underdog and you gotta show that conflict and that’s where he accepted.

NF:  How did you feel about Sean Astin portraying you on film?

RR:  Sean Astin was a perfect choice.  We were actually looking at another great actor by the name of Chris O’Donnell. He was under contract, but because of a movie I saw, it inspired me to call. Not that I was an expert on casting but I asked them if they would please look at Sean.  They liked him, and he got the role.  So, Sean Astin, basically, to make a long story short, made his career from Rudy. . . .

NF:  And you, yourself, made a cameo in the film.

RR:  Yeah, of course, you wanted to be part of that film so I wanted to do a cameo part.  But I was also encouraged by the director and the producers to do it.  I wanted to do it, why not?  When they made Secretariat, the lady who owns Secretariat, she made a cameo.  I think it’s important to make your cameos in movies like that.

NF:  Do you have a favorite sports movie?

RR:  I liked Remember The Titans.  I liked HoosiersRocky was my favorite, I think, of all.  I like Rocky Balboa.  I liked Secretariat.  The underdog type movie I think is what inspires me. . . . So saying all that and being part of all that – you put all that together and you tell yourself why not, why can’t I do it?  And that was the attitude I had.

NF:  One last question:  Do you have any predictions for the college football season this year?

RR:  Well, college football – you look at the heavyweights, your Alabamas, your Texas A&Ms, because of big quarterbacks.  I think Ohio State and maybe Alabama in the final.  That’s kinda the gut feeling I’m getting.  Who knows?  Great teams are upset, blindsided and they let their guard down.  But again, Southern Cal, Notre Dame, Ohio State, Michigan – all those teams – Wisconsin, great team.  Northwestern, I mean watching them come from where they were and where they’re at today – Ohio State, great team.  I mean, it’s just – shows you some great kids out there, great coaches, Coach Peterson is a great coach.  So there is – I love college football.  It’s exciting to me.  I love the playoffs for major league baseball in October.  I love it.  It’s just one of those things.

BIOGRAPHY: Daniel “Rudy” Ruettiger was born in Joliet, Illinois.   He spent one year in the United States Navy following high school.  Thereafter, he worked for a power plant before applying to Notre Dame.  Due to marginal grades, he completed his early college work at Holy Cross College before finally being accepted to Notre Dame in 1974.   Following his time at Notre Dame and the release of Rudy in 1993, Rudy has served as a motivational speaker, traveling the country inspiring others through his story of determination.  He can be found on Twitter at @TheRealRudy.

Twentieth Anniversary: Rudy (1993)

We here at Abnormal Use live and work in a part of the country in which college football is a religion.  Friday conversations predict how our favorite teams will do, and Monday conversations feature the analysis of how they did.  In light of this, we must recognize that the movie Rudy will celebrate the twentieth anniversary of its release on this coming Sunday.

Directed by David Anspaugh, and starring Sean Astin as former Notre Dame college football player Daniel “Rudy” Ruettiger, the film was originally released on October 13, 1993. It was the first movie that the Notre Dame administration allowed to be shot on campus since 1940.  Of note, Rudy was named one of the best 25 sports movies of the previous 25 years by ESPN.

Set in 1974, the movie was shot during the fall of 1991.  Our own GWB partner, Notre Dame alum Chris Kelly, was “featured prominently” in the movie, appearing in approximately four seconds worth of footage of the University of Notre Dame marching band (“The Band of the Fighting Irish!”).  (You have to look pretty hard to see him, but we here at Abnormal Use humor him, as we must all do with most Notre Dame fans.) Let’s see if you can spot him in these two screen shots we recently pulled from the Rudy DVD:

To be honest, we never believed Mr. Kelly, but he has now produced clear and convincing visual evidence of his cinematic stardom, right?

The film offered a trip back into college football and life in the 1970’s in the context of a feel good story.  When the movie was released in 1993, it provided an interesting contrast between modern football and the relative innocence of the game just a few decades before.  In the twenty years since its release, it is fair to say that college football, and football generally, has continued to change.  The college football of the 1990’s was big business, but now, it is an enormous economic enterprise fueled by 24/7 sports television.  There are still feel good stories to be told. but you have to dig past the branding and rush for revenue to find them. Some days, that’s no small feat. As the commercial enterprise of the sport has increased, so too have its legal issues.  In addition to litigation arising out of consolidation and destruction of conferences/markets, use of images of college athletes, compensation of players and NCAA rules enforcement, or lack thereof, we are seeing product liability and mass tort litigation related to concussions and helmet technology on both the pro and college level (note for the record we refrained from saying “amateur level”).  The immensity of the financial boon resulting from the fervor to cheer on the old alma mater has engendered an enormous amount of legal issues and litigation as the almighty dollar works its magic.

So we here at Abnormal Use will raise a glass of Guinness on this day and toast Rudy Ruettiger and the era when college football was more pure and played by student athletes that were thrilled to simply obtain a top notch education for free while playing a kids game. 

Mayweather Scores Knockout In Lawsuit

Floyd Mayweather followed up his recent victory in the ring against Canelo Alvarez with a victory in the courtroom against Anthony Dash.  Dash filed a lawsuit against Mayweather and World Wrestling Entertainment (WWE) alleging that they violated his copyright by playing a variant of Dash’s music during Mayweather’s entrance at two WWE wresting events.

The Fourth Circuit recently upheld dismissal of the suit on the grounds that Dash failed to provide evidence of his damages .

By way of background, Dash composed an instrumental “beat” in 2005 that he referred to as the “Tony Gunz Beat” or “TGB.”  He alleges that Mayweather and another individual co-wrote lyrics and recorded them over TGB to create song entitled “Yep.”  This song was played as intro music when Mayweather appeared at two WWE events, Wrestlemania and RAW, in 2008 and 2009.  Dash alleges that the use of “Yep” at the event infringed on his copyright and caused him economic damage of around $150,000.

In an lengthy opinion, the Fourth Circuit upheld the district court’s dismissal of the case on the grounds that Dash had not presented non-speculative evidence to support his claim for damages.   The district court had concluded that Dash was not entitled to actual damages because he had not offered “sufficient, concrete evidence to indicate an actual value of his beat.”  The Fourth Circuit noted that actual damages are to be calculated based on what a reasonable buyer would pay a reasonable seller.  Dash had presented an expert report stating that he could have received up to $3,000 for use of TGB if he had been paid a licensing fee.  However, the court found this report to be overly speculative.

The decision seemed to rest in large part on the fact that the value of songs are highly variable and depend on a number of factors.  Those factors include popularity of the work, the reputation of the songwriter, the presence of a released sound recording, and the possibility of a new recording in the studio.  The plaintiff’s expert failed to address these factors in reaching his opinion.

Of course, one could argue that trying to determine value of any song, whether from a well known artist or not, is highly speculative.  Music labels sign hundreds of artists per year hoping that one or two can become next Coldplay or Carrier Underwood.  While most don’t make it big, the ones that do tend to make it really, really big.  Figuring out which ones make it and which ones don’t is the hard part. Either way, it’s nice to see the that Mayweather can get back to more important things like attempting to win money on the shoulders of Johnny Football.

Fox News Finds Itself in Intellectual Property Battle

For the past few years, it has seemed liked Fox News spends more time in the news than reporting (and opining) on the news.  Once again, the network is back in the headlines, but this time, it stems from an intellectual property lawsuit against a company called TVEyes.  In a nutshell, TVEyes transcribes thousands of TV and radio broadcasts to make them text searchable and then sells access to the transcripts.  Fox News claims that the transcription of its broadcasts infringes on its intellectual property rights. The case, Fox News Network LLC v. TVEyes Inc. (No. 13-CV-5315), was filed in the U.S. District Court for the Southern District of New York.  According to the complaint,  TVEyes is willfully and deliberately infringing on Fox News’ copyrights and is misappropriating its “hot news” content.  It then allegedly distributes that content to subscribers over the Internet for a fee.  Fox News further alleges that TVEyes is “well aware” it needs a license or authorization from Fox News in order to reproduce its content in this manner. Apparently, TVEyes allegedly contacted Fox News seeking a license for its use of Fox News content, which Fox News declined to provide.

According to its website, the mission of TVEyes is “to organize the world’s television and radio broadcasts and make them universally searchable by the spoken words.”   Fox News’ complaint alleges that TVEyes charges users a subscription fee of $500 per user per month.  This is not some fly-by-night company, either.  Its customers include the United States Department of Defense.

Fox News pulls no punches in describing TVEyes’ business model.  The complaint argues that “TV Eyes engaged  in the parasitic business of offering and providing the public for a fee copies of the television programing and content created by others.”  Fox News wants an injunction, as well as unspecified statutory and punitive damages.  It is notable that Fox News does indeed have its own service that sell transcripts of its programing. TVEyes has already filed its motion to dismiss.  In the motion, TVEyes asserts that the Fox News’ claims are barred by the Copyright Act and the complaint fails to state a claims for “hot news” misappropriation.  A plaintiff alleging “hot news” must show “time-sensitive factual information, free-riding by the defendant, and threat to the very existence of Plaintiff’s product.” We’ll keep our eyes on this lawsuit.