Bright Side

Stephen McAllister looks on the bright side in 'Neighbors Beware: The Constitutionality of State Sex Offender Registration and Community Notification Laws'.

That article, in 29 Texas Tech Law Review (1998) 97-136, comments

All states now have sex offender registration laws, and all states have some form of community notification regarding, or public access to registrant information. This article evaluates two major constitutional challenges that are frequently raised in litigation involving these laws: (1) that they violate constitutional double jeopardy and ex post facto prohibitions; and (2) that they violate due process and equal protection principles. The article concludes that such challenges generally should fail and these laws should be considered presumptively constitutional. The article argues that sex offender registration and notification laws are not intended to be punitive measures, do not have historical counterparts that would have been considered “punitive”, and serve important if not compelling non-punitive public safety interests.

Health Privacy Breaches

Two announcements from the US about action under national health privacy law.

In the first the federal Department of Health & Human Services (HHS) last month reached a US$1.5 million settlement with insurer BlueCross BlueShield of Tennessee regarding a 2009 data breach. That settlement is the first under the Health Information Technology for Economic and Clinical Health (HITECH) Act Breach Notification Rule noted in past posts on this blog.

BlueCross notified the HHS Office for Civil Rights that 57 unencrypted hard drives had been stolen from a 'secure' room in a facility vacated by BlueCross as part of its move to new accommodation. The 'data closet' was ostensibly protected by "biometric and keycard scan security", a magnetic lock and an additional door with a keyed lock. The property manager also provided general security services for the premises. The drives featured health information concerning approximately one million individuals.

BlueCross' 2009 statement indicated that

The hard drives were part of a system that recorded and stored audio and video recordings of coordination of care and eligibility telephone calls from providers and members to BlueCross’ former Eastgate call center located in Chattanooga. The hard drives that were stolen contained data that included protected health information data of some members of the health plan. This data included member names and identification numbers and, on some but not all recordings, a diagnosis/diagnosis code, date of birth and/or a Social Security number.

The notification, consistent with mandatory data breach reporting, resulted in an investigation by the Office for Civil Rights. The latter concluded that BlueCross had failed to implement appropriate administrative safeguards and failed to provide physical safeguards to adequately protect the unencrypted information. Criticism of inadequate administrative safeguards centred on the failure to conduct a required security evaluation in response to operational changes (ie BlueCross failed to assess risks associated with movement to the new accommodation).

At a few cents more than a dollar per individual the penalty is unimpressive and compares unfavourably with remuneration of BlueCross senior executives. Media coverage suggests that BlueCross has spent over US$17 million in responding to the data breach over two and a half years. More importantly, it is required to implement a Corrective Action Plan that features random HHS auditing of BlueCross data storage devices, including unannounced site visits to facilities housing portable devices.

 The announcement was followed by news of a HHS settlement with Phoenix Cardiac Surgery regarding alleged violations of the HIPAA Privacy and Security Rules, which predate the HITECH Act and do not invoke mandatory data breach reporting.

The HHS Office for Civil Rights launched an investigation in February 2009 following a complaint alleging Phoenix "impermissibly disclosed electronic protected health information by making it publicly available on the Internet".

The Office found that Phoenix failed to adequately train employees on appropriate handling of protected health information. Phoenix did not have appropriate and reasonable administrative, physical and technical safeguards for the protection of patient data. In an egregious example, that resembles the Medvet incident in Australia, Phoenix allegedly "posted over 1,000 separate entries" of electronic personal medical information "on a publicly accessible, Internet-based calendar”. Phoenix employees emailed such information to their own personal email accounts. Perhaps not the sort of organisation you'd trust with your medical data.

The Office alleged that Phoenix had failed to appoint a security officer as required by HIPAA. Phoenix did not perform an accurate and thorough risk assessment and allegedly failed to gain “satisfactory assurances in a business associate agreement” from its commercial associates, an indication that Phoenix did not meet requirements under HIPAA.

The Office's Director commented that

This case is significant because it highlights a multi-year, continuing failure on the part of this provider to comply with the requirements of the Privacy and Security Rules. We hope that health care providers pay careful attention to this resolution agreement and understand that the HIPAA Privacy and Security Rules have been in place for many years, and OCR expects full compliance no matter the size of a covered entity.

No matter. The settlement with HHS was a US$100,000 and commitment to a one year corrective action plan.

Timeshifting

In National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd [2012] FCAFC 59 the Full Court of the Federal Court of Australia has overturned the decision by Rares J in Singtel Optus Pty Ltd v National Rugby League Investments Pty Ltd (No 2) [2012] FCA 34, concerned with the liability of Australian telco Optus for copyright infringement in relation to the TV Now service.

That service enabled  subscribers (householders and small businesses)  to record free to air television programmes (notably football matches) for viewing - ie play back -  on the subscriber’s compatible Optus mobile device or personal computer at a time chosen by the subscriber. In essence,  the service allowed consumers on a grand scale to engage in the timeshifting permitted under s 111 of  the Copyright Act 1968 (Cth), ie using a domestic video recorder or other device to record a free to air broadcast for later viewing on a noncommercial basis at a more convenient time.  Optus in effect provided subscribers with a recorder 'in the cloud'.

In the decision that was appealed the Australian Football League as part of its national Australian Rules competition had granted to Telstra (the dominant telco and main competitor of Optus) an exclusive licence to communicate to the public, by means of the internet and mobile devices, free to air television broadcasts of its football matches. The League and Telstra have copyright interests in the free-to-air broadcasts of live and filmed AFL and NRL football games recorded for Optus subscribers using the TV Now system.

The FCAFC considered two primary questions -

• who, for the purposes of the Copyright Act 1968 (Cth) was the maker of the film, sound recording or copy when a film (or copy) and a sound recording (or copy) of a television broadcast of one of the matches were made as part of the TV Now service? Was it Optus or the subscriber (or both of them jointly)?
• If Optus’ act in making the recording would "otherwise constitute an infringement of the copyright of AFL, NRL or Telstra, can Optus invoke what we would inaccurately, but conveniently, call the “private and domestic use” defence of s 111 of the Act"?

Rares J earlier this year held that the maker was the subscriber. On appeal the Federal Court reached a different conclusion, holding that the maker was Optus or, in the alternative, Optus and the subscriber. The FCAFC stated that

It is unnecessary for present purposes to express a definitive view as between the two. Optus could be said to be the maker in that the service it offered to, and did, supply a subscriber was to make and to make available to that person a recording of the football match he or she selected. Alternatively Optus and the subscriber could be said to be the maker for Copyright Act purposes as they acted in concert for the purpose of making a recording of the particular broadcast which the subscriber required to be made and of which he or she initiated the automated process by which copies were produced. In other words, they were jointly and severally responsible for the act of copying. That is our preferred view.

Rares J did not have to consider the second question, given his conclusion regarding the first question. The FCAFC held that

Optus cannot either as maker alone or as a maker with a subscriber bring itself within the scope of the s 111 exception on its proper construction.

It concluded [at 89] that -

There is nothing in the language, or the provenance, of s 111 to suggest that it was intended to cover commercial copying on behalf of individuals. Moreover, the natural meaning of the section is that the person who makes the copy is the person whose purpose is to use it as prescribed by s 111(1). Optus may well be said to have copied programmes so that otherscan use the recorded programme for the purpose envisaged by s 111. Optus, though, makes no use itself of the copies as it frankly concedes. It merely stores them for 30 days. And its purpose in providing its service – and, hence in making copies of programmes for subscribers – is to derive such market advantage in the digital TV industry as its commercial exploitation can provide. Optus cannot invoke the s 111 exception.

At 58 through 64 it stated that there are several reasons for rejecting the proposition that only the subscriber was the maker for s 101, hence s 111, purposes -

First, the meaning given “make” is, in our view, a contrived one. ... The OED definition with its emphasis on producing a “material thing” is an apt one for the purposes of s 86(a) and s 87(a) and (b) – and hence for s 101(1) and s 111 of the Act. In saying this we do not discountenance the need for there to be a causative agency if a copy of a particular thing is to be made. The issue is not simply how something is made. It is by whom is it made. This, as will be seen, is of some importance when we come to consider whether copies were made by Optus and the subscriber jointly.

Second, the reason for rejecting the proposition that the subscriber alone is the maker relates to how the system itself works. This is better discussed when considering whether Optus itself is the maker. We merely note here that a subscriber’s clicking on a button labelled “record” may trigger a sequence of actions which result in copies of a selected programme being made, but it does not necessarily follow that the subscriber alone makes that copy. 

Third, analogies are not necessarily helpful in this setting because they both divert attention from what the TV Now system has been designed to do and pre-suppose what is the function (albeit automated) it performs in the ongoing Optus-subscriber relationship. To anticipate matters, we consider that the system itself has been designed in a way that makes Optus the “main performer of the act of [copying]” ...

Fourth, there is some division between federal courts in the United States as how properly to differentiate between “direct” and “contributory” liability for copyright infringement where automated technologies are employed to make copies of copyright material ... In distinguishing the two forms of liability – a distinction which is of no concern to this Court in these appeals – the “volitional conduct” concept (and as well, the analogies with photocopier use by third parties and use of VCRs and DVRs) have been deployed. ... Whatever utility the volitional conduct concept has in distinguishing the two forms of infringement (given the need to do so in US jurisprudence), its adoption in this country would, in our view, require a gloss to be put on the word “make” in s 86(a) and s 87(a) and (b) of the Act. The need for so doing is not apparent to us, the more so because we have our own legislative and common law devices for imposing liability on third persons who are implicated or join in the infringing acts of another as, for example, by authorising the doing of such acts: Copyright Act s 101(1) and (1A) or by acting in concert with another to infringe copyright in pursuit of a common design: see eg Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd at [620]-[624]; and see below (iv) Optus and the subscriber jointly?

It equally is not apparent to us why a person who designs and operates a wholly automated copying system ought as of course not be treated as a “maker” of an infringing copy where the system itself is configured designedly so as to respond to a third party command to make that copy: see generally the criticism of Cartoon Networkin Ginsburg, at 15-18.

The FCAFC went on to consider whether the TV Now subscriber can nonetheless be said to have acted jointly with Optus in making the copies.

It is the case that no copies will be made of a programme unless the subscriber selects that programme to be recorded and communicates his or her confirmation of that selection to Optus, albeit by an electronic communication to its MACF servers. In at least this “but for” sense, the actions of the subscriber are causative of a recording later being made. Optus places emphasis on the necessity for that action of the subscriber, as well as the action of Optus, in setting up the system, in causing that recording to be made and, subsequently, causing the recording to be communicated to the subscriber. An Optus employee cannot press the record button. However, once that communication is made, the automated processes described by his Honour come into play – the server enters or creates a schedule ID in respect of the programme selected and the user’s unique identifying number in the user database; the recording controllers poll that database once a minute enquiring whether any users have scheduled the recording of any programme due to be broadcast at the time of polling; when the poll so identifies that the user’s selection is due to be broadcast, the MACF server informs the recording controllers which then cause four recordings to be made on the NAS hard disk – ie the timing of the recording coincides with Optus’ recording controller causing the recording to be made, rather than when the subscriber communicates its selection to Optus. 

Accepting as we do the appropriateness of the OED definition for the purposes of s 86, s 87 and s 101, we consider that Optus’ role in the making of a copy – ie in capturing the broadcast and then in embodying its images and sounds in the hard disk – is so pervasive that, even though entirely automated, it cannot be disregarded when the “person” who does the act of copying is to be identified. The system performs the very functions for which it was created by Optus. Even if one were to require volitional conduct proximate to the copying, Optus’ creating and keeping in constant readiness the TV Now system would satisfy that requirement. It should also be emphasised that the recording is made by reason of Optus’ system remaining “up” and available to implement the subscriber’s request at the time when its recording controllers poll the user database and receive a response indicating that a recording has been requested. What Optus actually does has –

a nexus sufficiently close and causal to the illegal copying that one could conclude that the machine owner ... trespassed on the exclusive domain of the copyright owners: CoStar Group Inc v LoopNet Inc [2004] USCA4 133; 373 F3d 544 at 550 (4th Circ. 2004). ...

Put shortly Optus is not merely making available its system to another who uses it to copy a broadcast: cf CoStar Group Inc at 550. Rather it captures, copies, stores and makes available for reward, a programme for later viewing by another: cf New York Times Co Inc v Tasini [2001] USSC 59 (2001) 533 US 483 at 504; and see Ginsburg at 15-16.

The real issue in consequence is whether Optus alone does the act of copying or whether Optus and the subscriber are jointly and severally responsible for that act.

... The appellants’ preferred characterisation of the Optus-subscriber relationship was that it was one in which Optus undertook to provide recordings of such free-to-air television programmes as the subscriber required to be recorded from time to time, the programmes after recording to be available to be viewed at the time or times of the subscriber’s choosing on any one of four types of Optus compatible mobile phone or PC. It was, in short, a service for which Optus solicited subscribers and in which it was obliged to provide recordings for viewing of programmes the subscriber required to be recorded.

As the recording could only occur as and when the broadcast occurred of the programme sought but that programme itself had to be notified to Optus in advance, Optus established the wholly automated system, described above, which it so configured that the required recording did occur. If that part of the system embodied the steps taken by Optus to ensure that the required programme was recorded at the right time for the subscriber who required it, then the selection and notified confirmation by the subscriber of the programme required to be recorded could be said to be merely the necessary pre-condition to be satisfied to activate Optus’ obligation to perform its service. If this be correct, then Optus can properly be identified as the maker of the copies of the recording. As the AFL has put it, Optus’ data centre carries out the user’s instruction to record a programme; it records that programme. In other words, if analogies are helpful in this particular setting (which we doubt), Optus is to be analogised with a commercial photocopier which copies copyright material provided to it for copying by it.

 ... To view the matter in contractual terms, the terms and conditions of the Service are quite unyielding of any clear indication as to what actually is the true character of the parties relationship. Reference has already been made to the ambiguities, inaccuracies and colloquialism in formulae such as the system “allows you to record and store television shows”. The system is “for your individual and personal use”. Indeed the terms of the contract in this regard are in large measure unarticulated and must be inferred or implied if the agreement is to be given relevant content: cf Hawkins v Clayton (1988) 164 CLR 539 at 570-571. This said, it is more probable than not that a reasonable person, knowing the circumstances available to both parties, would characterise the relationship agreed between the parties (ie would infer or impute to them) that it was a contract by Optus to provide a service such as we have described above. ...

So one comes back to the question of construction raised by the word “make” and its application in the present setting. As we have indicated, Optus not only has solicited subscriber utilisation of its Service, it has also designed and maintained a sophisticated system which can effectuate the making of recordings wanted for viewing by subscribers. For s 101 purposes, it manifestly is involved directly in doing the act of copying. It counts as a maker of copies for the subscriber. Does the subscriber as well? 

If one focussed not only upon the automated service which is held out as able to produce, and which actually produces, the copies but also on the causative agency that is responsible for the copies being made at all, the need for a more complex characterisation is suggested. The subscriber, by selecting the programme to be copied and by confirming that it is to be copied, can properly be said to be the person who instigates the copying. Yet it is Optus which effects it. Without the concerted actions of both there would be no copy made of a football match for the subscriber. Without the subscriber’s involvement, nothing would be created; without Optus’ involvement nothing would be copied. They have needed to act in concert to produce – they each have contributed to – a commonly desired outcome. The subscriber’s contributing acts were envisaged by the contractual terms and conditions. How they were to be done were indicated by the prompts given on the Optus TV Now TV guide page. The common design – the production of the selected programme for transmission to the subscriber – informed the solicitation and the taking of a subscription by the subscriber; it was immanent in the service to be provided.

In consequence, they could both properly be said to be jointly and severally responsible for the act of making the copies.

While it is not strictly necessary for us to determine whether Optus alone is, or Optus and the subscriber are, the maker(s), our preferred view would be that both Optus and the subscriber, acting together, were the makers of the copies.

Suppression

Lew & Ors v Priester & Ors (No 2) [2012] VSC 153 involves the Victorian Supreme Court's denial of an application by high profile entrepreneur Solomon Lew for a suppression order in a dispute involving a major family trust.

It's a nice pendant to the cascade of litigation involving Gina Rinehart and her family. All unhappy families are the same, to paraphrase Tolstoy, but the very rich have the means to pay for QCs and - if they choose - to invest in media groups. Both disputes are presumably being watched with great interest by the Australian Taxation Office and both have seen intervention by the mass media, along with commentary by academics (for example by myself in Privacy Law Bulletin).

The cogent judgment states at 1-4 that

The plaintiffs have applied for an order restricting publication of this proceeding to the extent that a prohibition on publication would apply under s 121 of the Family Law Act 1975 (Cth) if this proceeding was conducted in the Family Court of Australia. The stated purpose for which the order is sought is to protect the welfare of the grandchildren of the first and second plaintiffs (“Mr and Mrs Lew”). The plaintiffs allege that there has been a great deal of vindictive and deliberate misreporting of this proceeding by the media which has portrayed Mr Lew as “greedy” and seeking to shut his three children (the third, fourth and fifth defendants) (collectively “the Lew children”) out of the Lew Custodian Trust, when the claim brought by the plaintiffs against the Lew children is not concerned with beneficial interests in the Lew Custodian Trust but with the ownership of monies advanced by way of loan to the Trust. This misreporting is said to be causing harm to the grandchildren. Concern has been expressed by Mr and Mrs Lew and the Lew children that there will be a detrimental emotional effect on the grandchildren if there is further publication of this proceeding.

This proceeding is a claim brought by the plaintiffs for declarations that the Lew children have no beneficial interest in loan accounts in their names to which distributions from the Lew Custodian Trust were credited. The plaintiffs allege that Mr Lew, as the person in effective management and control of the trustee of the Lew Custodian Trust (the third plaintiff), caused distributions to be made from the trust to each of the Lew children in anticipation of legislative changes to the tax treatment of undistributed reserves of trusts. The plaintiffs allege that Mr Lew put a proposal to his children that would ensure that the Lew Custodian Trust distributed its reserves before the change in tax law but in such a way as not to diminish Mr Lew’s control over the assets of the trust. It is alleged that Mr Lew proposed to each of his children that he would cause a distribution to be made to them subject to, and conditional upon, them (1) agreeing that they would have no beneficial interest, or beneficial claim, to any part of the amounts distributed to them, (2) that Mr and Mrs Lew had the sole beneficial interest in the amounts distributed, (3) that the whole of the amount distributed would be dealt with subject to, and in accordance with, the wishes and at the direction of Mr Lew and (4) that unless the children agreed, no distribution would be made to them. It is further alleged that each of the children accepted the proposal.

The plaintiffs seek the declarations in the broader context of concurrent matrimonial property disputes in the Family Court. The beneficial entitlement to the loan account in the name of the fourth defendant is an issue in the Family Court proceeding between her and her former husband, the first defendant. The beneficial entitlement to the loan account in the name of the fifth defendant is an issue in the Family Court proceeding between him and his former wife, the second defendant. The plaintiffs seek to have declared as against all the defendants in this proceeding, who include the former spouses, that the monies are owned by Mr and Mrs Lew. The reporting of the Family Court proceedings is restricted by, and under, s 121 of the Family Law Act.

The plaintiffs want their grandchildren to have the same protections from publication of this proceeding as they do in respect of the Family Court proceedings and put their application on the basis that it is not an application for a closed court but rather it is an application for parity between the confidentiality protection in the Family Court and the proceedings in the Supreme Court. Various media interests have intervened to oppose the order that is sought.

In refusing the application Davies J stated that -

 I am not persuaded that the Court’s power under s 18 of the Supreme Court Act or its power to make non-publication orders in its inherent jurisdiction has been enlivened.

1First, the plaintiffs relied on the rights of the grandchildren to be free from public harassment and the duty of the Court to protect the best interests of the children in order to engage the Court’s power to make a non-publication order. It is undoubted that these considerations, in an appropriate case, may bear on the Court’s exercise of power but the power is only enlivened by the plaintiffs showing that the order is necessary in order to prevent prejudice to the administration of justice or to prevent endangering the physical safety of any person (which are the two possible grounds open to the plaintiffs). To put it another way, the jurisdiction of the Court to make orders restricting publication of any proceeding is not founded in the rights of the grandchildren but in s 18 of the Supreme Court Act and the Court’s inherent jurisdiction. Accordingly, asserting the rights of the grandchildren as the basis for the exercise of power amounts to no more than asserting the conclusion that an order should be made, without demonstrating why the exercise of power is justified by reference to the necessity for that order in the administration of justice.

Secondly, the Court’s jurisdiction to make orders restricting publication of any proceeding is not founded in an equivalent provision to s 121 of the Family Law Act. Section 121 of the Family Law Act secures the purpose of protecting the confidentiality and privacy of the matrimonial proceedings because Parliament has legislated that matrimonial proceedings are to be conducted behind closed doors. Section 121 of the Family Court Act has no counterpart in ss 18 and 19 of the Supreme Court Act or at common law. Sections 18 and 19 of the Supreme Court Act and this Court’s inherent jurisdiction govern the making of non-publication orders in this proceeding. Hence there is a need to engage with the principles that apply in this Court. Reasons of comity or parity of rights may explain why the order is desired but those reasons do not address why the non-publication order is necessary within the terms of s 19 of the Supreme Court Act.

Thirdly, the necessity for an order is not made out by the fact that material which is confidential in the matrimonial proceedings is able to be published in this proceeding pursuant to the order of the Family Court made under s 121(9)(g) of the Family Law Act. The appropriate time for seeking a non-publication order to ensure the continued protection of s 121 of the Family Court Act is when, and to the extent that, such material is sought to be relied on in this proceeding so that the application can be considered in light of the particular material which founds the “necessity” for the order and so that the order, if appropriate, will not go further than is necessary to secure the administration of justice.

Fourthly, an order in the terms sought is not justified even if there has been misreporting of this proceeding (about which I express no view). The order, if made, would have the effect of suppressing all reporting, including preventing, or at least restricting, the publication of fair and accurate reports of this proceeding. There can be no justification for any restriction on fair and accurate reporting of this proceeding, as the concern here is to protect the grandchildren against misreporting. If the proceedings have been misreported, the redress against inaccurate or unfair reporting is not a general order that would prevent or restrict all reporting. As McHugh J said in John Fairfax & Sons Ltd v Police Tribunal of New South Wales: "The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom".

The courts have other powers that can be exercised against the particular journalists/media responsible.

Finally, the application is not supported by probative evidence that further publication of this proceeding will have a detrimental emotional effect on the grandchildren. The concern to that effect expressed by Mr and Mrs Lew and the Lew children is an insufficient basis upon which the Court can reasonably reach the conclusion that it is necessary to make an order restricting publication. Mere belief that the order is necessary is insufficient. It is regrettable that the grandchildren have been subjected to gossip and hurtful comments at school arising from the publication of the proceeding to date which has caused them distress. However, that is not a sufficient reason to make a non-publication order. In Rinehart v Welker Bathurst CJ and McColl JA cited with approval the proposition in R v Legal Aid Board; Ex parte Kaim Todner (a firm) that:

In general ... parties and witnesses have to accept the embarrassment and damage to their reputation and the possible consequential loss which can be inherent in being involved in litigation.

Readin n ritin (and rituals)

In wrapping up teaching for the semester I'm provoking my students with two US items on legal reading and writing. (Fortunately nothing on legal 'rithmetic'.)

'What is ‘Good Legal Writing’ and Why Does it Matter? (University of Michigan Public Law Working Paper No. 252) by Mark Osbeck comments  -

 Law schools face increasing pressure to improve instruction in practice-oriented skills. One of the most important of these skills is legal writing. The existing literature on legal writing contains various rules and suggestions as to how legal writers can improve their writing skills. Yet it lacks an adequate theoretical account of the fundamental nature of good legal writing. As a result, legal writers are left without a conceptual framework to ground the individual rules and suggestions. This article attempts to fill the theoretical void in the literature by offering a systematic analysis of what it is for a legal document to be well-written. It starts by examining a foundational conceptual issue, which is what legal writers mean when they say that a legal document is well-written. It argues that legal readers judge a document to be well-written if the writing helps them make the decisions they need to make in the course of their professional duties. The article then provides an analysis of the fundamental qualities that enable legal writing to do this, concluding that there are three such qualities: clarity, conciseness, and the ability to appropriately engage the reader. The article explains why each of these qualities is essential to good legal writing, and it examines the tools good writers use to make their writing clear, concise, and engaging. Lastly, the article examines what it is that distinguishes the very best writing in the field, arguing that great legal writing is not just writing that is especially clear, concise, and engaging, but is instead writing characterized by a separate quality, elegance, that is aesthetic in nature. The article then goes on to explore what it is that makes such writing elegant, and whether it is desirable for legal writers to strive for elegance in their own writing. The article concludes by briefly considering the pedagogical implications of the analysis discussed in the previous sections.

'The Legal Reader: An Exposé' (University of Tennessee Legal Studies Research Paper No. 183) by Michael Higdon comments that

John Steinbeck once said, “Your audience is one single reader. I have found that sometimes it helps to pick out the person — a real person you know, or an imagined person — and write to that one.” For legal writers, however, this advice is somewhat difficult to follow as their documents are likely to be read by many different kinds of audience members. In this Article, however, I mean to focus specifically on one particular kind of reader: the legally-trained reader or, more simply, the legal reader. After all, the majority of lawyers will find themselves communicating most often with legal readers, whether those readers are other lawyers, judges, or even legislators. 

But who is this legal reader? And, further, what is it about this person that makes her different from an ordinary reader? Various texts on legal writing have alluded to the legal reader and some have even identified some of the key characteristics such a reader is likely to possess. In this Article, however, I want to go further. Specifically, it is my goal to synthesize all the various descriptions that others have used when describing the legal reader into a single manageable definition, one that is based on and identifies the pertinent traits of the average legal reader. I then illustrate the way in which these traits manifest themselves in the expectations of the legal reader — expectations the legal writer must understand if he hopes to communicate with the legal reader most effectively. 

Along the way, I rely heavily on examples from pop culture given that pedagogy scholars have increasingly come to classify pop culture as being “indispensable in education.” In fact, even “[l]egal scholars are starting to recognize the positive impact of using popular-culture references as a mechanism of communication in legal discourse.” Thus, because I hope this article might (at least in part) serve as a teaching tool, I have intentionally included the various pop culture references contained herein to provide us all with some common ground — after all, when it comes to legal education, “students” (whether talking about law students in particular or life-long students of the law in general) are able to “better understand, explore, apply, and synthesize new legal concepts when the concepts are linked or related to their preexisting knowledge and experiences.”

Promo

Given my interest in the Canadian class action against purveyors of a homeopathic 'remedy' it is interesting to read 'Can Speech by FDA-Regulated Firms Ever be Noncommercial?" by Nathan Cortez in (2011) 37(2) American Journal of Law and Medicine 388-421.

Cortez considers -

whether speech by pharmaceutical, medical device, and other FDA-regulated companies can ever be noncommercial and thus subject to heightened protection under the First Amendment. Since the U.S. Supreme Court first recognized a right to commercial speech in 1976, there have been 24 published federal judicial opinions in which an FDA-regulated firm has argued that its speech was protected. Courts have categorized the speech as commercial in all but two cases, neither of which involved FDA rules or enforcement. 

I examine the tests and factors courts claim they use when making this threshold distinction, then identify the various factors and indicia of commercial speech that they actually use. I find that courts often use the speaker's commercial identity as a proxy for commercial intent, which otherwise is the most salient factor. The Article then considers various forms of speech by FDA-regulated companies that blur the distinction between commercial and noncommercial speech, including publicity, statements via new media, speech through experts and intermediaries, and scientific speech, including speech about off-label uses for their products. 

The Article concludes that each of the various factors courts use to distinguish commercial from noncommercial speech would have to align perfectly for courts to give it heightened First Amendment protection.

He notes that

For over a century, the Food and Drug Administration (FDA or the Agency) and its precursors have regulated what companies say about their products. The FDA itself notes that the regulatory scheme imposed by the Federal Food, Drug, and Cosmetic Act “depends on the use of words” and that its requirements can “explicitly limit speech.” For seventy years, the FDA had little reason to worry about First Amendment constraints. But since 1976, when the Supreme Court reversed its longstanding position that the First Amendment does not protect commercial speech, the Agency has had to confront —perhaps more than any other federal agency — the free speech rights of regulated firms. 

But how far do those rights extend, and what room do they leave for regulators like the FDA? The answer largely depends on another question: Is the speech commercial or noncommercial? The distinction is paramount. If speech by a regulated firm is commercial, then the FDA can ensure that it is not false or misleading; the Agency can require or compel certain speech; it can impose prior restraints; and it can even limit truthful speech, all within certain parameters.But if the speech is noncommercial, the FDA may not do many — if any — of these things. The distinction thus determines the extent to which the government can regulate, if at all. Unfortunately, after three decades of experience with commercial speech, the doctrinal distinctions between commercial and noncommercial speech remain marbled with points of confusion and contention. The prevailing test from Bolger v. Youngs Drug Products asks whether the speech is an advertisement, whether it refers to a specific product, and whether the speaker has an economic motive, thus considering the form, content, and motivation for the speech. This test capably distinguishes paradigmatic examples of commercial and noncommercial speech. But it is unsatisfactory when categorizing less traditional or even mixed speech, thereby leaving lower courts, regulators, and regulated parties alike with significant uncertainty as to the permissible bounds of regulation. 

A point of lingering uncertainty is under what circumstances speech by corporations might qualify for heightened protection as noncommercial. In 2003, the Supreme Court declined to hear Nike v. Kasky, passing on a chance to provide much-anticipated guidance. Before then, the Court established that direct comments on public issues deserve heightened protection, regardless of who is speaking. But what about other forms of corporate speech? Can speech by regulated firms ever be noncommercial? If so, when? 

These are not minor questions for agencies like the FDA that confront myriad forms of speech that are not easily categorized. Marketers of food, drugs, devices, and dietary supplements often speak in ways that disrupt our conventional understanding of what constitutes advertising or promotion. Not only have these companies pioneered the creative use of press releases, web sites, social media, and other formats, but they also speak through intermediaries and third parties — particularly scientific and medical experts — using speakers bureaus, continuing medical education (CME) seminars, industry and academic conferences, and reprints of scientific studies and academic articles. Are these forms of speech always commercial? What would it take to qualify for heightened protection? 

To better answer these questions, this Article offers a framework that identifies the indicia of commercial speech — the relevant factors courts can use to distinguish commercial from noncommercial speech. Relying on both Supreme Court decisions and a systematic review of cases in which FDA-regulated firms claimed First Amendment protection, I propose a more reductionist, disaggregated approach than the three-part test in Bolger. Bolger considers the form, content and motivation for the speech. I argue that courts should recognize that they are really considering the Who, What, When, Where, Why, and How of the speech at issue: Who is speaking? What is the content of the speech? When is the speech communicated? Where is the speech directed? Why is the speaker speaking? And how is the speech communicated? These questions provide a more complete, detailed picture of the speech. And courts should acknowledge these factors and understand how they operate. 

The Article evaluates how courts have applied these factors and offers a few observations. First, when courts apply the three factors from Bolger, the distinction often boils down to why the speaker is speaking — whether the speech is economically motivated. Despite claims that the Supreme Court is careful not to rest the distinction on commercial intent, which it considers almost “forbidden territory,” most of the factors indeed look for evidence of commercial intent. As emphasized below, commercial intent can become evident by carefully examining who is speaking, about what, when, where, why, and how. Why the speaker is speaking is the most salient factor, but perhaps the most difficult to reliably ascertain. 

Second, courts frequently rely on who is speaking as a proxy for determining the speaker’s motivations, notwithstanding the Supreme Court’s repeated declarations that not all speech by corporations is necessarily commercial. My review found that out of twenty-four cases in which FDA-regulated firms claimed First Amendment protection, courts categorized the speech as commercial in all but two, neither of which involved FDA rules or enforcement. 

The case law suggests that courts have developed more than a healthy dose of skepticism regarding speech by FDA-regulated firms, particularly pharmaceutical and medical device manufacturers. I consider several types of distinction-blurring speech by these firms — including statements made via press releases and other forms of publicity, speech associated with charitable programs, and speech about off-label uses for FDA- approved products—and conclude that each of the factors would have to align perfectly for a skeptical court to categorize the speech as noncommercial. Thus, the answer to the question in the title (Can speech by FDA-regulated firms ever be noncommercial?) is yes, but only if the stars align.

Tonson Inc

'Copyrighting Shakespeare: Jacob Tonson, Eighteenth Century English Copyright, and the Birth of Shakespeare Scholarship' by Jeffrey Gaba in Journal of Intellectual Property Law (2011) considers the Rupert Murdoch of the 1720s and what one of my more unobservant students recurrently referrred to as the "statue of Anne".

Gaba's 49 page article comments that -

 In 1709, Jacob Tonson, the premier publisher of his age, purchased the “copyright” to Shakespeare. Tonson and his family over the next fifty years went on to publish some of the most significant editions of the collected works of Shakespeare, edited by the likes of Nicholas Rowe, Alexander Pope and Samuel Johnson. In many ways, the Tonsons were responsible for the growth of Shakespeare’s popularity and the critical study of his work.

This article discusses the significance of copyright to the Tonsons’ publication decisions. It suggests that the Tonson copyright did not significantly “encourage” their contributions to Shakespeare scholarship. First, Jacob Tonson could not have relied on statutory copyright for protection of his seminal 1709 Rowe edition. Tonson, quite simply, did hold the copyrights at that point, and the Statute of Anne had not yet been introduced, let alone passed, by Parliament. Second, the Tonsons’ publication of later editions would not, as some have asserted, have perpetuated any common law or statutory copyright claim Tonson might have to the works of Shakespeare. Third, although the textual notes and comments contributed by his editors may have been copyrighted, most of the significant editorial contributions to Shakespeare scholarship would not themselves have been subject to copyright protection. Selection of plays in the legitimate Shakespeare canon, for example, and selection of the appropriate text from earlier quarto and Folio editions would not have been subject to copyright protection. Fourth, the expansion of public access to cheaper, more widely available editions of the Shakespeare plays arose in spite of, rather than because of, copyright protections. It was a challenge by a book “pirate” that caused the Tonsons, not to seek legal protection through their claimed copyright, but to flood the market with their own cheap editions of the plays. 

Finally, the article suggests a reason why the Tonsons, whose name appears as plaintiff in many of the early copyright cases, never sought to litigate their claim to a copyright in Shakespeare. Simply put, litigating a claim to copyright in Shakespeare would have been a poor “test case” to secure what the Bookseller’s sought at that time – a perpetual common law copyright based on the natural rights of authors. 

This article suggests that copyright issues, although certainly important, were ancillary to the Tonsons’ publication decisions. Market forces, the protections from competition afforded by a Bookseller cartel, and a respect for Shakespeare’s works, more than copyright protections, appeared to drive the Tonsons’ actions and therefore the growth of Shakespeare scholarship.

'Room for One More': The Metaphorics of Physical Space in the Eighteenth-Century Copyright Debate' by Simon Stern in 24 Law and Literature (2012) takes a more theoretical turn, focussing on

literary texts and writings by copyright polemicists – those arguing for and against stronger copyright protection during the eighteenth century. The metaphor of the text as a tract of land has been cited by other commentators on copyright history, but has not been examined closely. Working through a series of writings on imitation and derivative use, the article shows how the metaphor seemed initially to provide an ideal basis for demanding stronger copyright protection and for policing piracy and derivative uses more aggressively, but turned out, in some writers’ hands, to offer yet another means of portraying the literary marketplace as endlessly expansive. Henry Fielding, in his literary journalism, insisted that there was always “room for one more” even in a crowded marketplace, and he invoked a series of legal doctrines to defend the practice of intercommoning and even poaching on a “neighbour” writer’s land. Far from dictating a particular view of the law, the metaphors of copyright are always capable of being revised and reinterpreted to support the writer’s own perspective.