Archive for October, 2011

Says the Strib: Pay up

October 31, 2011

With the end of October comes the end of free online access to the Star Tribune.  Tomorrow begins a test of whether Minnesotans are in the mood to pay news contained in the state’s largest newspaper.

Well, that’s a bit of a misnomer.  No one can be asked “pay for news” because no one “owns” the news.  Copyright law protects only the way the news is written and otherwise presented.  No one can own facts.  Still, the Strib most certainly owns the way it writes about and presents the facts.

It will be interesting to see what, if any, effect the subscription arrangement has on websites such as, which provides hyperlinks to full stories in media across Minnesota.  Also, bloggers who cut and paste Strib content word-for-word into their blogs could face increased scrutiny and potential legal liability.

But arguably, it’s time for a generation of news consumers who have grown up assuming news is “free” to learn a hard reality:  gathering and presenting the news takes time, and effort, and talent.  And people who work in the news biz deserve and need to be compensated for their efforts.


Is sleeping outside Hennepin County Government Center “speech”?

October 30, 2011

By sleeping outside the Hennepin County Government Center, Occupy Minnesota adherents are sending a message through what they are doing as much as what they are saying.  And it’s possible, but likely not probable, that the First Amendment protects their acts.

It is not entirely clear whether sleeping in a public place is, essentially, speech.   In 1984, the United States Supreme Court held that the National Park Service could regulate the “time, place, and manner” of protests in Lafayette Park across from the White House and therefore could prohibit overnight sleeping.  But interestingly, the court “assumed for present purposes” that sleeping in connection with a demonstration is “expressive conduct protected to some extent by the First Amendment.”  And two civil-rights-focused justices, Thurgood Marshall and William Brennan, wrote a dissent persuasively explaining why those particular protests should have been protected as speech:  because by sleeping outside, the protesters were trying to draw attention to homelessness.

Similarly, Occupy Minnesota protesters hope to draw attention to people who have been made homeless through foreclosures.  And to that end, the Minnesota effort has rightfully claimed some success.

But should the protesters’ rights be litigated in court, lawyers will have a tough time arguing that Hennepin County has no right to regulate the time, place, and manner of protests.   The other side likely would cite a 2008 federal-court decision where the federal court in Minnesota cited the Layfayette Park case to help explain how and why the City of St. Paul had a right to regulate protests outside the Republican National Convention.

Of course, Occupy Minnesota would be free to argue that the federal court got it wrong and that this situation is different.  And in some ways, it most certainly is.

Joe Buck plagiarized, but did he violate dad’s “copyright” (theoretically speaking)?

October 28, 2011

Pretend for a moment Major League Baseball didn’t own the copyright to World Series broadcasts. Did Joe Buck violate his dad’s “copyright” last night by plagiarizing the famous Minnesota Twins “we’ll see you tomorrow night” call from 1991’s famous Game 6?

Whether it was a tribute to dad or a lapse in creativity, last night’s plagiarism was glaring.  (Compare the 1991 call here with the 2011 call here.)

Son did nothing to add to dad’s creativity — a requirement for there not to be copyright infringement.  It sort of reminds me of Vanilla Ice ripping of Queen and David Bowie’s baseline from “Under Pressure,” a copyright case that ended in a big settlement.

It’s all theoretical, of course, given that MLB can’t sue itself.  And it was a spur-of-the-moment thing.  But still, c’mon Joe, add some value to your dad’s Minnesota Twins call.


Music ranging from “Ring of Fire” to “Billie Jean” cited in MN copyright suit

October 27, 2011

Ring of Fire, Walk Like an Egyptian, and Billie Jean are among a potpourri of songs that two Twin Cities-area taverns are accused of playing without paying for the rights to do so.

Music-licensing company BMI started copyright-infringement lawsuits in Minnesota federal court last week.  The Defendants are  bars called Brewers of Jordan (in Jordan) and Courtside Bar & Grill in Anoka.  (The complaints are here and here, and exhibits here and here.)

Ring of Fire is among the songs both bars are accused of playing, back in early August.  The list of other songs Brewers allegedly played reads like a middle-aged dad’s iTunes library on shuffle:  Billie Jean, Cover of the Rolling Stone, Have Mercy, Mama He’s Crazy (a/k/a Mama She’s Lazy), Mammas Don’t Let Your Babies Grow Up to be Cowboys, Mountain Music, Proud Mary, Simple Man, Something to Talk About, Walk Like an Egyptian, Watermelon Crawl, One of these Nights, Snow Hey Oh, and Little White Church.

The lawsuit alleges the Anoka bar played four songs, including Ain’t No Sunshine, Simple Man, and Jumper.

BMI’s website explains that it “collects license fees from businesses that use music, which it distributes as royalties to songwriters, composers & music publishers.”   Companies that own the various copyrights are listed as plaintiffs, too.  And in the Brewers suit, so are “sole proprietor” artists Kenny O’Dell, Shirley Eikhard, Glenn Frey, and Obed Wayne Kirkpatrick.

The cases are the musicians’ to prove.  But the lawsuit does draw attention to an often-understood reality about music and downloads:  we don’t own the songs.  Instead, we own a license to listen to the songs we “purchase.”   Purchasing music for use at home, in the car, etc. does not necessarily mean the music can be used for commercial purposes.

Yes, the law probably protects even light-bulb photographs

October 26, 2011

A Maple Grove company that sells light bulbs on the internet is asking a Minnesota federal judge to order a competitor to stop using its light-bulb photographs on its website.

Service Lighting, which began selling on the internet in 1996, filed its copyright infringement lawsuit on Tuesday.  The lawsuit alleges that Ohio-based has failed to remove the photographs from its website despite repeated demands.

According to the complaint, Service Lighting has aggressively protected its copyrights by making more than two dozen demands for other retailers to remove the pictures from their websites.  But the lawsuit alleges that has not complied.

Are simple photos of light bulbs protected by copyright law?  Likely, yes.  A photograph has to have some creativity for copyright law to apply, but the creativity need be only minimal.  It doesn’t need to be a great work of art.

Of course, that means bloggers and social media types are violating copyrights all the time.  Facebook friends who choose, say, a Minnesota Lynx logo as a Facebook profile pic technically are committing copyright violations (unless they had permission from the Lynx to do so).

But in reality, companies and other copyright owners rarely enforce their copyrights — unless the alleged violator tries to make a buck.  And that is what is alleged to be happening here.

The case has been assigned to Judge Patrick Schiltz.

Chris Cook’s name was mud from the start

October 26, 2011

Vikings cornerback Chris Cook has now been charged with felony domestic assault.  Without question, the charges are chilling and disturbing.  But they are just that, of course.  Charges.  Cook has yet to be tried, and on paper he’s innocent until proven guilty.

But in the paper — in the newspaper — innocence is lost when the suspect happens to be famous.

For example, over the weekend, a Star Tribune blog readily identified Cook by name as he sat in jail, waiting to be charged with assaulting his girlfriend.  Yet in a story from May, the Star Tribune did not identify two men arrested and accused of randomly robbing and beating pedestrians in Minneapolis’ Uptown neighborhood.  Here was the newspaper’s explanation:  “The Star Tribune generally does not name suspects until they are charged.”

Wow.  The “general” rule, of course, does not apply when the arrested prisoner is famous.  As for the not-so-famous, even those accused of random attacks, well, um, they deserve, ah …

To be fair, the Star Tribune was far from alone in muddying Cook’s name over the weekend.  The facts of his arrest and jailing were true.  Of course the facts were news.  And unquestionably the media had a right to do exactly what they did.  In the 1989 case of Florida Star v. B.J.F., the United States Supreme Court made it clear that when the news media obtain truthful news (in that case, the name of a rape victim), they have a First Amendment right to publish it free from governmental interference.

I’m the first to support the rights of journalists to make news decisions and to exercise discretion about when to name criminal suspects and when not to do so.  It’s their job.  But the over-the-weekend Cook stories are just the latest chapter in what is a difficult, inconsistent area for the news media to navigate.

Is cybersquatting on Michele Bachmann’s name illegal? It’s not clear

October 26, 2011

Among the Republican Party’s presidential contenders, Minnesotan Michele Bachmann has the easiest name to misspell, and cybersquatters are making the most of it.  But it’s unclear whether they risk legal liability under federal anti-cybersquatting law.

As MinnPost and Roll Call report, typing in brings up a spoof site where the words “Batsh** Crazy” are prominently displayed.   Going to will redirect you to’s website seeking sexual-orientation tolerance.  And used to lead to Penthouse magazine.

The federal Anticybersquatting Consumer Protection Act authorizes lawsuits when a website has a “confusingly similar” to a trademark, including when the trademark is a person name.  But the law requires there to be a trademark.  And while my trademark search shows Michele Bachmann has trademarked her book Michele Bachmann’s America, she appears not to have trademarked her own name.  Oops.

Another requirement is that the cybersquatter must have a “bad faith intent to profit” from the website. appears intended to make change, not ching.  Hmm …

Of course, if the Minnesotan sued, a court might read the law differently.  Regardless, Bachmann and the other candidates need to get used to it. used to go to a porn site, and to a George W. Bush parody site.

But ironically, the satirists need to do their own proofreading.  While they spelled Michele spelled correctly in the first paragraph of their spoof story, they messed it up in the third.

Attempt to use “SLAPP” statute slapped down

October 25, 2011

The Minnesota Court of Appeals has rejected a northwestern Minnesota farmer’s attempt to use Minnesota’s often-overlooked anti-“SLAPP” statute to put an end to a lawsuit that was filed against him after he refused to let an oil-pipeline company enter his property.

“SLAPP” stands for “strategic litigation against public participation.”  Anti-SLAPP laws let defendants file motions to dismiss lawsuits that are filed in response to citizens’ attempts to influence governmental projects.  Classic examples are when people get sued for speaking at a public meeting or for passing out leaflets critical of a development project.  Blogging about government might be protected too, but that remains to be seen.

Few lawyers even know the anti-SLAPP law exists.  The theory behind the law is that if people can get sued for speaking out for or against development projects, we’ll all be chilled into silence and in the end there will be no freedom of speech.

But speech was not at issue in the northwestern Minnesota case.  The farmer placed hay bales on his property in an attempt to hinder the pipeline company’s access to the Alberta Clipper pipeline, which is being built to deliver oil from Canada to the Twin Ports.  The farmer’s argument was that because the pipeline company was a public-service corporation, the company essentially was part of the government — and the hay bales were designed to procure favorable governmental action.

The Minnesota Court of Appeals would have none of it, and it let the case against the farmer go forward.  Similar cases around the country generally stress what the purpose of SLAPP laws is generally understood to be:  to ensure freedom of speech.

A shoot-to-kill “good Samaritan”?

October 23, 2011

The Pioneer Press is citing Minnesota’s “good Samaritan law” in its story about the still-unnamed guy who chased down an apparent armed robber and shot him dead in south Minneapolis Friday night.  The Strib also is  describing the shooter as a “good Samaritan” and is quoting a source who says the fatal shooting likely was legally justified.

Not so fast.

As the Minnesota Court of Appeals explained in a 2002 decision, the purpose of Minnesota’s good Samaritan law “is to encourage laypersons to help those in need, even when they are under no legal obligation to do so, by providing immunity from liability claims arising out of an attempt to assist a person in peril.”

Is an armed robber’s victim “in peril” when — as here — the mugger flees the scene?  Likely, no.  Plus, the law does not shield a gunman from criminal liability.  Further, Minnesota’s good Sam law, like all others, is intended to protect us against getting sued for not giving CPR properly or getting in an accident while driving an injured child to the hospital.  I’m not aware of anything to suggest it was intended to shield a gunman from liability for chasing down and killing an apparent armed robber who was fleeing the scene of the crime.

The newspapers suggest that because the “good Samaritan” had a handgun permit, different rules apply.  They don’t.  The Minnesota “Personal Protection Act”  is not a license to use deadly force to protect or recover personal property such as a purse—let alone someone else’s. The Star Tribune quotes a firearms trainer and vice president of the Gun Owners Civil Rights Alliance who claims Minnesotans are “completely justified in shooting” if they give chase and the confrontation turned violent.  But arguably, such a “good Samaritan” who chases an armed robber knows the confrontation could turn violent and knowingly and voluntarily put himself in a situation where self-defense might very well be necessary.

All this being said, judging from commenters to the newspapers’ stories, many Minnesotans would find the killing justified, and as is typical a grand jury probably will decide whether the “good Samaritan” should be charged.   He very well might not be, and even if he is he might very well be acquitted.  But despite the newspaper reports, the gunman does not really fit the legal definition of “good Samaritan.”

Ely newspaper benefiting from judge’s “clear material error”

October 22, 2011

The Timberjay, a scrappy newspaper in Ely, is tussling to obtain documents related to school-construction projects in environmentally-aware northeastern Minnesota.  The paper’s target is Johnson Controls, a conglomerate that contracted to build two schools in the far-flung St. Louis County school district, Minnesota’s largest (geographically speaking).

The newspaper seeks a copy of a subcontract Johnson Controls made with Architectural Resources, Inc., a northeastern Minnesota architectural and engineering firm.  State documents suggest the Timberjay wants information about how much it will cost to operate water towers and water treatment facilities related to the new schools.

Johnson Controls refused to turn over the documents, claiming  Minnesota’s open-records law did not require disclosure.  Last month, an administrative law judge agreed and dismissed the Timberjay’s lawsuit.  But earlier this month, a chief administrative law judge reversed the ruling, characterizing it as a “clear material error” on the judge’s part.

The key issue is whether Johnson Controls performed a “government function” for the school district.  If so, it needs to turn over the documents so the newspaper can write about what it will cost taxpayers to operate the schools.

The latest ruling went the newspaper’s way, and the Duluth News Tribune reported today that a hearing is forthcoming because the  chief judge rejected an appeal.  Timberjay publisher and editor Marshall Helmberger said he fears Johnson Controls is trying to run up legal bills, while Johnson Controls told the newspaper it is simply trying to protect its subcontractor’s “confidential and propriety information.”

Both sides have good arguments, but it’s hard to argue that citizens don’t have a right to know what it will cost to operate their schools.