Category Archives: Student Blawg

Does it really matter what Jodi Arias wants?

By: Melinda Joiner – Student Blawg

In an interview with Phoenix television station KSAZ just moments after the jury returned their verdict, thirty-two year old Jodi Arias had the audacity to say, “I believe death is the ultimate freedom, so I’d rather just have my freedom as soon as I can get it…I would much rather die sooner than later.” Unfortunately, Jodi, you lost your freedom when the jury convicted you of first-degree murder. Your fate lies in the hands of the jury.

Yesterday, an Arizona jury convicted Arias of first-degree murder for stabbing her ex-boyfriend Travis Alexander twenty times, shooting him in the face, and cutting his neck, nearly decapitating him back in 2008. If the jury finds that ‘the murder was committed in an especially heinous, cruel, or depraved manner,’ Arias could face the death penalty. If they are unable to establish at least one aggravating circumstance, Arias would face the dreaded life in prison sentence.

I’m usually not one to express my opinion, but I was flabbergasted when I read her statement regarding her punishment preference. Who cares what her preference is? Not only did she commit murder. She committed it in a horrific manner. How can anyone convicted of such a heinous crime expect his or her “freedom?” All I could think when I saw Arias’ statement was “I hope the jury gives her exactly what she doesn’t want: life in prison.”

Last month Arias’ attorney filed a motion to have jury members sequestered, stating to the judge ‘The court asks the question of the jurors every morning, “Have you seen anything on the media?” No one raises their hand…To believe that to be true is to believe an absolute fiction. It is a fairytale to assume that this jury is not hearing any of this. It is all over the news, be it local or national.’ The judge denied the motion urging the jurors to avoid all media coverage of the trial. However, if I was a member of the jury and accidentally saw or heard Arias’ statement, I would find it extremely difficult to cast it aside and determine her punishment solely on the heinousness of her crime. Every fiber of my being would want to give her a lifetime in prison punished by her own thoughts and feelings.

After a bomb threat at the courthouse where the trial was being held and the rescheduling of the aggravation phase of the trial (where the jury will determine whether or not the death penalty may be imposed) today, we will have to wait until next Wednesday for the jury to begin the process to determine if Jodi Arias will get her wish.

Sources:

http://www.cnn.com/2013/05/09/justice/arizona-jodi-arias-trial/?hpt=hp_c2

http://abcnews.go.com/US/jodi-arias-lawyer-asks-jurors-sequestered/story?id=18876926#.UYyz8LWceSp
http://usnews.nbcnews.com/_news/2013/05/08/18128048-jury-finds-jodi-arias-guilty-of-first-degree-murder?lite

http://www.foxnews.com/on-air/on-the-record/2013/05/09/exclusive-jodi-arias-interview-death-ultimate-freedom-so-id-rather-just-have-my-freedom

https://www.azag.gov/sites/default/files/sites/all/docs/Criminal/ccc/Final-CapPun.pdf

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Celebrities Voice Their Support for Hawaii Privacy Bill

~by Sonya Gillen (Student Blawg)

They say justice is blind: but ideally she is not deaf.  At least that is what Steven Tyler is hoping.  The lead singer of Aerosmith, along with fellow rocker Mick Fleetwood of Fleetwood Mac, testified on February 8, 2013, before a Hawaii Senate hearing in support of Hawaii S.B. 465, otherwise known as The Steven Tyler Act.

The bill, written by Tyler’s entertainment attorney, Dina LaPlot, and introduced by Democratic Hawaiian State Senator Kalani English, provides for a civil cause of action for invasion of privacy in addition to the current physical invasion of privacy in the State of Hawaii.  The Tyler Act was recently amended by the Hawaii Senate Judiciary and Labor Committee to strongly resemble the California Anti-Paparazzi Law (California Civil Code 1708.8).  California is the first, and only state to pass anti-paparazzi legislation. The California legislation was signed into law under then Governor and former celebrity Arnold Schwarzenegger and enacted on January 1, 1999.

Proponents for the Hawaii Privacy Bill say that it will help protect vacationing celebrities from overzealous paparazzi and therefore will encourage celebrities to vacation in Hawaii.  If enacted, the new law will make a person liable for civil action resulting in general, special and punitive damages equal to three times the amount of general and special damages combined if a person engages in constructive invasion of privacy.  Under the act, “A person is liable for a civil action of constructive invasion of privacy if the person captures or intends to capture, in a manner that is offensive to a reasonable person, through any means a visual image, sound recording, or other physical impression of another person while that person is engaging in a personal or familial activity with a reasonable expectation of privacy.”

Fellow celebrities, such as Neil Diamond, Avril Lavigne, Brittney Spears, and Tommy Lee among others, showed their support for the bill by sending individual written statements, all with the same content, to the Hawaii State Senate.  The group wrote, “Enacting SB465 would provide me and other public figures with a peace of mind that is nearly impossible to find in Hawaii because of the rampant paparazzi”.

The Hawaiian Attorney General, the ACLU of Hawaii, the Motion Picture Association of America and some local citizens oppose the legislation, saying the bill violates the First Amendment of the United States Constitution and Article 1, Section 4 of the Hawaii Constitution; is overbroad and unnecessary; and will have a chilling effect on legitimate press coverage.  Laurie Temple of the Hawaii chapter of the ACLU wrote, “Current state laws regarding trespass, invasion of privacy, and harassment, e.g. can more than handle the privacy, free speech and safety concerns of Hawaii’s residents and visitors.” In their memo to address First Amendment concerns regarding the publication of the illegally obtained pictures, the Motion Picture Association citied New York Times Co. v. United States, 403 U.S. 713 (1971) which established the right of a newspaper to publish knowingly illegally stolen materials and Vartnicki et al. v. Vopper, et al., 532 U.S. 514, at 534 (2001) which held that illegally intercepted communications were protected by the First Amendment.

Tyler’s attorney, Dina LaPolt, defended the legislation and its First Amendment constitutionality, citing Time, Inc v. Hill (1967) saying, “the Supreme Court of the United States held that the action of intrusion (i.e. paparazzi constructively invading a public figure’s privacy) does not itself raise First Amendment concerns because it does not involve speech or other expression.”

The legislation easily passed the Senate, but is now encountering problems in the House of Representatives, who are essentially telling Tyler to “Dream On”.  (Sorry, you knew there had to be at least one silly Aerosmith pun in a blog that focuses on Steven Tyler)  Rep. Angus McKelvey who is the head of the Hawaiian Consumer Protection Committee is quoted as telling a representative from the Associated Press, “There is zero support for that legislation in the House of Representatives”.  The bill seems to be stalling in committee.  Commenting on the likelihood of the House committee leaders putting in a joint request to the Speaker of the House to move the bill forward, McKelvey commented, “There is a better chance of people flapping their arms and flying from Lanai to Maui.”  (Well, there probably will be no backstage passes in his future)

Although it is currently stalled, the legislation may not be officially dead.   It may be the “Same Old Song and Dance”(Ugh, sorry again) for the legislation in the future. When the Senate Judiciary and Labor Committee revised the original version of the bill, they changed the effective date from July 1, 2013 to July 1, 2050 to allow time for further discussion on the bill.  “I was very surprised we got out of the Senate on the first run,” LaPolt said. “If it had passed through the House, I would have been shocked.”  For Tyler and LaPolt, at least the publicity generated by the legislation has no doubt been a “Sweet Emotion”. (not sorry on that one!)


Used, abused and resold: “first sale” applies to works made abroad

~ By Sara Boyd (Student Blawg)

Overshadowed by arguments about same-sex marriage rights and affirmative action, the court handed down an opinion that has a global impact on copyright and consumerism. Although it is unlikely that any American will realize the ripple of change considering many didn’t know there was ever an argument about it.

 That issue was whether the “first sale” doctrine applied to foreign produced copies of American copyrighted materials. The scenario of Kirtsaeng v. Wiley goes like this: Mr. Kirtsaeng came to the United States from Thailand to study. In order to supplement his income while in school, he formulated a plan to have his family purchase international editions of textbooks in Thailand, ship them to him in the U.S. and resell them, at a profit, on Ebay. There is no argument about the legitimacy of the textbooks as they were not pirated. The problem which arose was whether the “first sale” doctrine should apply and thus the importation would have been legal. In the internet-centric, global world we live in, it is hard to believe that a product lawfully manufactured overseas would be subject to different laws than one produced here.

 Let’s begin by looking at the first sale doctrine. Briefly, Section 109(a) is the principle that once the owner of genuine copyrighted material distributes it, the buyer can treat the object as his/her own and freely sell, lease, or lend the work to another. There are, however, two more clauses of the Copyright Act that were pertinent to this case. First, Section 602 subsection (a) is the importation clause. In essence it says that you cannot import copyrighted material without the permission of the copyright holder. If you do not obtain that permission, it is infringement of their (the copyright holder’s) right to distribute their materials under section 106; which leads us to section 106 subsection (3). Pretty much this section just says the copyright holder has the exclusive right to distribute their work as they see fit. However, it is subject to sections 107 through 122. And low and behold would you believe it, the first sale doctrine is section 109. How circuitous! This seems like an exclusion to the importation clause. The main crux of this case was section 109(a)’s five little words: “lawfully made under this title” and how circuitous the Copyright Act really is. Does “lawfully made under this title” mean subject to the Copyright Act or made where the Copyright Act is applicable? The court chose the non-geographical interpretation and subsequent interdependency of the Copyright Act sections.

 Breyer favored an Occam’s razor approach to interpreting the key “five little words” in section 109(a) and thank goodness! Had the vote had swayed the other way you would have been an unwitting mule to copyright infringement having purchased that romantic teen vampire novel (given it was manufactured overseas) before boarding the plane heading home and subsequently “importing” it to the States. Had the vote swayed the other way, once you remembered that you are not a fifteen year old girl and thus the book was a bit age “inappropriate” you could never lawfully rid yourself of it without obtaining the oh-so humble authorization of the copyright holder. And really, who has time for that? Fifteen year old girls that’s who. Instead we shall continue our blissful ignorance that a doctrine we have all taken for granted applies to any good with an American copyright attached to it in the entire world. Doesn’t it just make you want to go out and buy foreign manufactured stuff just to exercise your rights as an American consumer?

 In the strangest and slightly disconcerting collection of dissenting Justices (Ginsburg, Kennedy and Scalia) ever, Ginsburg describes her belief that America is hesitant to move towards “international exhaustion.” The flaw in her argument is that so many people have operated as if this decision had always been the law. Breyer touches on this when he quotes the used book dealers saying “they have, ‘operat[ed]…for centuries’ under the assumption that the ‘first sale’ doctrine applies.” It isn’t just the used book dealers, it’s practically every American. Never have I once stopped to consider where my copy of “Twilight” was manufactured before I used it as camp fire kindling. The “world is flat” as Thomas Friedman reminded us in 2005 and now is no time to revert to the ostrich with its head in the sand, isolationist ideology.

Read the opinion here.


Student Blawg: The Costa Concordia

By: An Anonymous Student

During the night of January 13, 2012, the 955-foot Italian-flagged COSTA CONCORDIA struck rocks and capsized near the coast of Giglio, Italy, resulting in evacuation of the 4,252 people on board. Thirty-two people are known to have died during this tragic event, others were injured and two are still missing.

This tragedy raises a number of issues including cruise ship safety and the rights of cruise ship passengers, particularly pertaining to the matter of legal jurisdiction. A cruise ship ticket is also known as a “cruise ticket contract.” By purchasing the ticket, a passenger arguably enters a contract and agrees to its conditions, which include a series of limitations and waivers in case of dispute. Two clauses of concern on the Costa Concordia ticket address the jurisdiction and which laws apply for possible legal claims against the company. The “forum selection” clause stipulates the specific court in which a plaintiff may file a claim against Costa. The “choice of law” clause is where Costa names which country’s laws will apply to that claim. Despite the fact that the cruise ship has its headquarters in Miami, FL, the forum is in Italy and the choice of law is Italian law. According to Beard Stacey and Jacobsen, LLP, maritime injury law firm in Washington, this clause gives the passengers a huge disadvantage of bringing their lawsuits in Italy versus the US where it is typically easier to recover damages for pain and sufferings. Time limits on legal notices and actions are stated on the contract, and there is also a clause in the Costa contract barring the filing of a class action lawsuit.

At last report, Costa Concordia has said it will reimburse passengers for travel expenses and medical expenses. The company is also offering uninjured passengers about $14,460 each to compensate for lost luggage and psychological trauma. It is obvious that not all the passengers agree that this amount is sufficient to cover the terrifying experience of being on a sinking ship. Costa plans to address compensation to those with physical injuries and to the families of those who died on an individual basis. The Costa ticket contains a clause limiting its liability for the death or injury of a passenger to about $71,000, although that doesn’t apply in cases of recklessness and some legal experts say it could be successfully challenged.

Despite the terms on the Costa cruise ticket contract, lawsuits, including class action suits, by U.S. citizens and citizens of other countries are being filed in Florida and other states. The families of those who lost their lives fear that Italian law and courts will not appropriately address their losses. It is unclear whether the Florida court will keep the case or uphold the forum selection clause in favor of the Italian court. Even if the Florida court finds a way to keep the case on jurisdictional grounds, it may still uphold the choice of law clause stated in the cruise ticket contract. In such a case, damages would be governed by Italian law.


Student Blawg: Two thoughts about the Lower North Fork Fire

Lower North Fork Fire, Raise the Cap?

By, An Anonymous Student

On March 26 2012 a fire now known as the Lower North Fork fire raged near Conifer resulting in three deaths and the destruction of 23 homes.  Total damage amounts to at least $11.3 million.  However, since the Colorado State Forrest Service started the fire as a controlled burn, the state has a cap of $600K against lawsuits.  The Colorado Governmental Immunity Act limits the state’s combined claims to $600,000 and is divided among hundreds of claimants. The seemingly paltry sum would barely begin to compensate the victims against the states’ negligence. Governor Hickenlooper’s solution is to centralize the command by placing controlled burns under the authority of the Department of Public Safety, instead of Local Affairs and CSU. A special state commission was recently created by Republicans to review individual claims and pay out compensation on losses not covered by insurance.  Supporters of the commission state the legislation opens up an avenue for victims to collect more than the current immunity cap. Detractors state that it sets a dangerous precedent.  How do you compensate others for legitimate claims but are limited by the $600K cap?  For cash strapped Colorado, where does the money come from?  Are Colorado taxpayers now going to have to foot the bill for prescribed burns to protect the state from possible negligence claims? Do taxpayers need to pay for homeowner damages that choose to live in high-risk fire zones?

 

By, Another Anonymous Student

 

There have been several articles on the State’s liability to home owners and families that lost loved ones during the recent Lower North Fork Fire that have caused me to pause and ask “what is wrong here?”   The answer is that several things went wrong.

First, the Colorado State Forest Service under the direction of the Colorado State University set a “prescribed burn” on March 22, 2012 during one of the driest and windiest March’s that Colorado has seen in a long time.  Second, under proper procedures, any prescribed burn is supposed to be patrolled for three days after it has been extinguished.  The North Fork Fire was only patrolled for two days.  The Jefferson County Sheriff’s office in conjunction with the U.S. Department of the Interior, U.S. Bureau of Land Management and the U.S. Forest Service investigation indicated that even if the fire would have been patrolled on March 25, that the site did not seem (appear) to be dangerous.  But on March 26, 2012 the fire reignited because of dry conditions and 80 mph wind gusts and suddenly was out of control.

Governor John Hickenlooper commissioned an investigation into the cause and origin of the fire that resulted in the death of three people, destruction of 23 homes at an estimated value of $11.3 million, the destruction of thousands of acres of land and utilities, and an unstated cost to the state for the cost of extinguishing the fire.

The commission found that (i) there was no criminal wrong doing on the part of the Colorado State Forest Service, (ii) failure in communications delayed coordination of fighting the fire, and (iii) there were problems with the reverse notification system and getting residents evacuated in a timely manner.  Specifically, the first reverse notification did not go specifically to residents in the fire’s path, the second call was placed by a private company hired by Jefferson County with to a list of homes that did not include all of the homes in the path of the fire, and door to door evacuations were sporadic and did not include all of the homes that were destroyed.  But again no one seems to be responsible.

Under the Colorado Governmental Immunity Act the state’s liability is limited to $150,000 per individual up to a total of $600,000.  Up until 1987, the maximum liability was $400,000 until the then Governor Roy Romer increased the limit to $600,000 when the Colorado Department of Transportation loosened a boulder on Berthoud Pass that killed nine passengers in a bus.   Currently there have been nine notices of intent to file suit as a result of the Lower North Fork Fire.  IREA has filed a claim of $1.2 million for destruction of transmission lines.  The American Family Insurance company has also filed a “notice of claim.”

I can understand how the liability of the state must be limited to ensure that it has the funds to continue to serve the public.  But it is the public’s tax dollars that fund the government!  Errors were made and lives and homes were lost.  The general public is required to carry all kinds of insurance to replace their belongings due to destruction and to protect against claims of liability.  Corporations also carry all kinds of insurance including large “umbrella” policies to cover the unexpected and claims that exceed stated insurance policy limits.  Why can’t the State also carry these large umbrella policies?  A total of $600,000 is a drop in the bucket.  Most states run their state agencies like a corporation, and therefore, they should also have to carry that additional insurance to protect against instances like this.  This is especially true when the State seems to pursue any individual that can be found guilty of setting a fire, whether intentionally or not, and sending them the bill for the cost associated with the extinguishing of the fire.  If it is found that a fire was set intentionally, then criminal charges are also levied against the individuals.  The Lower North Fork Fire was “intentionally” set and resulted in lose of life and property.  Since Colorado is a heavily forested state and susceptible to droughts, the State’s legislature should pass legislation to ensure that the State has umbrella insurance policies to pay for its errors that result in lose of life and property because raising the maximum total by another $200,000 isn’t going to cut it.

 


Student Blawg: Oil and Gas Producers Don’t Belong in the Free Lunch Line

By: Anonymous Student

 

I applaud the U.S. Environmental Protection Agency for finalizing a rule which includes the first federal air pollution standards for hydraulic fracturing operations under the Clean Air Act. Now it is time for EPA to do the same for water quality standards under the Safe Drinking Water Act (SDWA) and Clean Water Act (CWA).

Oil and gas developers currently take advantage of a major exemption from the SDWA. Specifically, hydraulic fracturing operations are not subject to provisions relating to the Underground Injection Control (UIC) program. The UIC program regulates injection of fluids into the subsurface for purposes of disposing contaminated wastewater or storing gas. Even though hydraulic fracturing involves injecting fracking fluids into the subsurface, oil and gas developers are exempt from the UIC program. This means they do not have to monitor groundwater before, during, or after drilling operations.

Similarly, the entire oil and gas industry enjoys a broad exemption from the CWA. In this case, hydraulic fracturing operations are not required to obtain a NPDES permit for non-reportable storm water discharge. A 2007 study by EPA, which evaluates the impact of gas well sites on storm water runoff in City of Denton, Texas, concluded this exemption allows the industry to release, without a permit, storm water which contains high levels of total suspended and dissolved solids, chlorides, metals, alkalinity, and pH.

These exemptions allow oil and gas producers to operate with impunity. They are not being held accountable for groundwater and surface water contamination caused by their wells. This is most distressing because the Colorado Oil and Gas Conservation Commission plans to increase hydraulic fracturing permits, at a minimum, by 20% every year for the next three years. If oil and gas producers are allowed to increase production without monitoring groundwater or applying for storm water discharge permits, it is conceivable aquifers, wells, and tributary streams all over the country will become devastated.

A strong argument can be made hydraulic fracturing contaminates groundwater. The EPA is currently reviewing scientific evidence and reports from local water districts and residents which suggest a direct link between hydraulic fracturing operations and contaminated groundwater and surface water. It is my hope EPA, state agencies, and producers will take these findings seriously and adjust regulatory requirements and industry practices accordingly.

With that in mind, the time has come to eliminate the UIC and NPDES permit exemptions in the SDWA and CWA. Oil and gas producers can certainly afford compliance requirements, especially since modern hydraulic fracturing techniques have made oil and gas extraction much cheaper. In addition, the regulatory framework within the SDWA and CWA already exists, and the oil and gas industry exemption provisions need only be repealed.

I am confident the oil and gas lobby will claim this is an enormous regulatory burden, and I can already hear folks arguing federal environmental agencies should be dismantled, not empowered. To this I say: I do not want to be the oil and gas industry’s next victim in The Tragedy of the Commons. The oil and gas industry has never effectively regulated themselves in regards to minimizing their impact on the environment. We cannot expect them to start now.

The oil and gas industry should be held to the same standards as other industries. Producers have filed through the free lunch line long enough. When EPA and Congress are asked to repeal the oil and gas industry exemptions from SDWA and CWA, let’s support them.


Google and its Ever-Mounting Legal Issues

Google is moving backward from its slogan of “Don’t Be Evil.” Earlier this month, the technology giant was fined $25,000 for collecting sensitive information from Wi-Fi networks as it gathered photographs for its street-view feature on Google Maps. Also, a lawsuit claiming Google infringed on patents relating to voice control on mobile devices was filed in U.S. District Court in Denver this week.
Because it really is a technology giant, Google feels it has a right to take information belonging to others, whether it is personal information gathered over Wi-Fi networks or patents created and filed by very small companies several years ago. Google aims to make the world better by having all the information it can get, whether or not it shares that information with the world.
The FCC blames Google for collecting personally sensitive information over open Wi-Fi networks while building its “street view” feature on its mapping service. Google, of course, denies any wrong-doing, and claims the FCC took so long to complete an investigation on the issue that Google agreed to a months-long extension so the agency’s legal time limit for finishing the investigation wouldn’t end.
Potter Voice Technologies, a small company out of Brighton, Colorado, filed a patent more than ten years ago on voice control technologies for mobile devices. This technology is so similar to voice control features on Google devices that, Potter decided to sue Google (along with other technology giants Apple, Sony, and Samsung) for violating the patent on file when at least some of those companies knew of its existence.
Google’s main legal infraction is taking information that does not belong to it as a company. Whether personal information is involved or intellectual property is at stake, to keep its upper hand on the internet age, Google must learn to ask permission and play nice with others and their sensitive information. The company would probably pay less money to buy information and license an existing patent than it will in fines and lawsuit settlements.
Let me clarify: I am an avid Google user. Google organizes my life: I have my email, my calendar, a file of Google documents, the ability to shop on Google, and I find directions through Google Maps. I want Google to be around to keep my life together, but the company needs to get its behavior together to minimize the damage to its reputation and potential major loss of users. “Don’t be evil,” Google.

Articles used for this blog entry:
Google Fires Back on FCC WiFi Investigation
http://www.denverpost.com/nationworld/ci_20487525/google-fires-back-at-fcc-wi-fi-investigation
Tiny Brighton Company Sues Apple and Google over Siri
http://www.denverpost.com/breakingnews/ci_20490675/tiny-brighton-company-sues-apple-and-google-over