Friday, November 16, 2012

Why remember William H. Lewis?

Before we say goodbye to 2012, the year in which we re-elected our first African-American President, I would like to mention an important centenary in civil rights law. One hundred years ago William H. Lewis, a graduate of Amherst College and Harvard Law School, completed his service as the first African-American Assistant Attorney General of the United States.
William H. Lewis, Esq.

It was President William Howard Taft who appointed Lewis, and President Woodrow Wilson, the winner of the 1912 election, who fired him. As Professor J. Clay Smith, Jr., points out in Emancipation: The Making of the Black Lawyer, 1844-1944, before leaving the White House, Taft tried, unsuccessfully, to persuade the Governor of Massachusetts to appoint Lewis to the bench.

Although Lewis never became a judge, he helped shape the state's anti-discrimination statutes. Even as a law student in the mid-1890s, Lewis was already part of Boston's network of African-American civil rights activists. Whether to bring a test case or just by chance, he visited a Cambridge barber shop for a haircut. When the owner refused him service Lewis and his allies -- including State Representative Robert Teamoh -- lobbied to add barber shops to the list of places where discrimination was unlawful.

The lobbying paid off. So even before his stint as a state legislator in 1902, Lewis had left an imprint on the statute book. Those of us who practice anti-discrimination law can be thankful for his efforts.

Wednesday, October 31, 2012

Tebowing Trademark Takeaways: Three Lesons

New York Jets quarterback Tim Tebow is in the news over rumors of a trade. Before that, the headlines were about his trademark. Wherever Tebow plays football, it seems a safe bet that he will be trying to control the use of the word “Tebowing,” a term that describes the Christian athlete’s practice of dropping to one knee in prayer. For fans and non-fans, faithful and faithless alike, Tebow’s recent experience with trademark law has three lessons.
Tim Tebow: a valuable image
But before the lessons, some background. In December 2011, Tebow filed a set of intent-to-use applications with the United States Patent and Trademark Office (USPTO) for the words “Tim Tebow” in connection with products such as jewelry, clothing, DVDs, and stationery, and services such as online seminars. The USPTO published three of the applications for opposition in the Official Gazette on October 16, 23, and 30 respectively. If nobody objects during the 30-day opposition period, Tebow’s name will become a federally registered trademark in three different classes in time for the holidays.
But Tim Tebow’s are by no means the only Tebow-related applications the USPTO has on its docket. There are currently seven live (and three dead) applications for the mark “Tebowing,” a verb that entered the lexicon in October 2011, according to Wikipedia. That was the authority the USPTO cited when it rejected the trademark application of Jared Kleinstein on February 22, 2012, a fact replete with irony in view of the fact that it was Kleinstein who – according to Wikipedia – coined the term Tebowing.
Kleinstein had filed his application (serial no. 85458244) to register “Tebowing” on October 27, 2011. Along with his application he submitted a screenshot showing a list of t-shirts he had sold that day via CafĂ© Press.
But before Kleinstein’s application could make it to the Official Gazette, Tim Tebow himself intervened. In January 2012, Tebow’s attorney sent the USPTO three letters of protest complaining that Kleinstein’s mark would cause consumer confusion: Consumers would presume a connection between the trademark and Tim Tebow. As evidence, Tebow’s counsel pointed to the athlete’s sponsorship deals with Nike, Jockey Apparel, and Electronic Arts. The USPTO concurred and refused Kleinstein’s application because it implied a false connection with a living individual, contrary to 15 U.S.C. section 1052(d).
Was that the end of Kleinstein’s application? No, it rose again and now –made reincarnate – has a new applicant, namely XV Enterprises, an LLC organized in Florida, with a business address of 5082 Hampden Avenue, Suite 115, Denver, Colorado. As the Hampden Avenue neighborhood might suggest (Temple Sinai on one side and Bethany Lutheran Church on the other) the owner of XV Enterprises is Tim Tebow.
So how did Tim Tebow’s company end up with Jared Kleinstein’s trademark application? The process seems to have involved nothing more miraculous than money. On May 10, 2012, Kleinstein assigned his trademark application to XV Enterprises “for good and valuable consideration.” Unfortunately for those of us who are curious about these things, the assignment does not state the number of dollars that moved from Tim Tebow to Jared Kleinstein.
With Tebow’s XV Enterprises as the applicant, the USPTO published “Tebowing” for opposition October 9, 2012. The 30 day opposition period runs until November 8, so if you have a legitimate claim to the mark “Tebowing” and do not wish Tim Tebow to acquire the exclusive, nationwide right to use it in commerce, you should act swiftly. In the meantime, what lessons can we draw from the mark’s sojourn in the USPTO?
1. Letter of Protest
Tim Tebow’s lawyer did not wait until the post-publication opposition period. He filed a letter of protest, a powerful weapon that enables third parties – not only the owners of competing marks – to step into the USPTO’s examination process at an early stage. Although it is an informal document, a letter requires factual, objective evidence, not mere opinion. But the evidentiary standards are not onerous. So trademark owners and concerned citizens who learn of applications with the potential to cause consumer confusion should not sit on their hands.
2. Assignment
Jared Kleinstein assigned his mark and “the goodwill associated with it” to XV Enterprises. As any intellectual property practitioner knows, you cannot assign a trademark in gross. What does that mean? It means that when you transfer trademark rights, you must convey not simply the mark, but also the goodwill associated with it.  The “amorphous goodwill concept,” as Professor Robert Bone calls it, refers to a mark’s consumer loyalty, but remains “abstract, and notoriously difficult to define.” Business owners and their attorneys should not fret unduly about the precise meaning of the word; all we need to remember is to include it in the assignment.
3. Right of Publicity
Tim Tebow is a resident of New Jersey, according to his Facebook page. New Jersey is one of the states that recognizes the right of publicity, which allows individuals to control the commercial exploitation of their name and likeness. Unlike federal trademark protection, the right of publicity does not depend on you registering your name anywhere, filing renewals, paying a fee, or using it in interstate commerce. These are clear advantages. On the other hand, whether you actually have a right of publicity depends on where you live. Almost half the states do not recognize it. Of those that do, only some have enacted statutes to delineate its scope; in the others it remains a common-law right and, therefore, less predictable. As a practical matter then, if your name has value in the marketplace, registering it as a trademark would be wiser than simply relying on the right of publicity.
Finally, it is worth remembering the power of parody. Although the Lanham Act does not explicitly provide fair-use exceptions like parody the way the Copyright Act does, judges are tending to imply it so as to uphold the First Amendment. This evolving area of law may affect Tim Tebow, because among the other entrepreneurs seeking to turn Tebow’s fame to their pecuniary advantage is Daniel Gordon of New Jersey. He has applied to register the word Tebow within the outline of a fish (think Jesus fish and Darwin fish). Does he have a prayer? Stay tun

Wednesday, August 1, 2012

Privacy, publicity, and identity

Sometimes judges give helpful hints. I think Judge Kenneth Neiman provided one recently when he denied a motion to dismiss in a case about a photograph, Peckham v. New England Newspapers, Inc., 40 Media L.Rep. 1849 (June 4, 2012). The thumbnail sketch is this:

A newspaper photographer took a photo of a motor-vehicle collision showing the victim's arm waving from the wreckage. The victim's face is not visible. After running the story about the collision, the newspaper made the image available for purchase and reproduction on a number of products via its website, as is its practice with other images in its portfolio. The victim sued. The newspaper moved to dismiss, and Judge Neiman denied the motion, thereby allowing the case to go forward. You can read the judge's order denying the motion to dismiss here, and a thorough description of the case in context by the Citizen Media Law Project here.
"Name, portrait, or picture"

So what is the legal basis for trying to prevent the newspaper selling an image in which it owns the copyright?

In the complaint, counsel for the plaintiffs alleged violation of the right to privacy but did not refer to a specific statute. Judge Neiman points out which statute in particular the plaintiffs might want to focus on, namely M.G.L. c. 214, section 3A. This law establishes the right of publicity, which is related to -- but not the same as -- the right to privacy. Unlike the right to privacy, which upholds your right to be left alone, the Massachusetts right of publicity law allows you to control the commercial exploitation of your "name, portrait, or picture." In that sense it is similar to trademark law and the people who sue for infringement are usually celebrities attempting to stop unauthorized advertisers free-riding on their fame.

In some jurisdictions, such as California, the right of publicity is expansive, covering an individual's persona, identity, and voice. Here in Massachusetts, it is narrow, covering only the "name, portrait, or picture." There is no suggestion in Peckham that the newspaper is using the accident victim's name, and no reasonable person would suggest that the image of an arm amounts to a "portrait." To prevail, the plaintiffs will need to show that the image of the arm ids a "picture" of the victim and that selling the image of the plaintiff's arm alone, with no face visible, violates his right of publicity.

I suspect that the outcome of the case will hinge on the definition of "picture." It would have been helpful if, back in 1973 when it drafted the right-of-publicity statute, the Massachusetts Legislature had included the phrase "readily identifiable," but it did not.

So the Peckham case raises three questions: (1) Does the image at issue identify the plaintiff; (2) Does an image that does not identify the plaintiff come within the statutory meaning of a "picture"; and (3) Would the answer be different if the owner of the arm was a celebrity?

Judge Neiman's order mentions the fact that the Massachusetts courts have yet to fully explore the law regarding "newsworthiness."  Let's hope the Peckham case also provides an opportunity to explore the question of when a picture is a "picture" within the meaning of the right-of-publicity statute.

Thursday, July 26, 2012

Three Things I Learned About Campaign Finance

"You never want to see my name and your name in the same newspaper story," is how Mike Sullivan, director of the state Office of Campaign and Political Finance (OCPF) opened his seminar in Westfield recently. He pointed out that to date there has never been a Herald or Globe headline lauding a political candidate for filing their financial statements thoroughly and promptly. The only time an article appears about a candidate's interaction with OCPF, you can be sure it's one he or she won't be asking supporters to like and share on Facebook.

OCPF's seminars are a must for candidates, treasurers, and active members of political committees. I went along partly because I'm no longer in full-time higher education and just had to stem my withdrawal symptoms. The Master's program at the Center for Public Policy and Administration, UMass, gave me some invaluable new insights into the policy-making process, economics, statistics, and public management. But I do have one criticism: It only lasts two years! Now that I've graduated I have to feed my learning habit where I can.
Public policy class at CPPA

So here are the three things I learned at the OCPF seminar that I'm going to remember when I'm working on or counseling a campaign:

1.  Citizens United: My other (more serious) reason for attending the OCPF seminar was the need to catch up on the impact of Citizens United on campaigns at the state and local level. As Mike Sullivan reminded us, Citizens United does not permit corporations to make unlimited contributions to candidates. So our state's statutory ban on corporate contributions to candidates remains in full force and effect. If you're running for, say, state representative and a supporter sends you a check drawn on a corporate bank account, can you deposit it? No.

What the Citizens United decision does allow corporations to do, to the chagrin of groups such as Move to Amend, is make unlimited independent expenditures in support of a candidate. That freedom to spend freely has yet to spur corporations to spread the wealth around here in Massachusetts, at least at the statewide and legislative level. But perhaps mayoral and city council races will be where independent corporate expenditures happen in the future. We shall see.

2. Planning: Political committees must not use public buildings for fundraising, and that includes discussions about fundraising. If your political party's town committee meets in the town hall, the public library, or the community room at the police station, make sure that you don't devote meeting time to planning the committee's next money-making event.

This rule puts committees in a tough spot. On the one hand, you want to meet in a public building because it's ADA-compliant and usually free or very low-cost. On the other hand, raising money to help get your party's message out is central to the mission of any political committee, and always will be unless and until the Post Office starts giving away stamps and printers stop charging for brochures and yard signs.

But I know you can't helping wondering, "What's the likelihood of getting busted for breaking such a silly rule?" Just bear this in mind: All it takes is one disgruntled member to rat you out to OCPF. If your committee has never had (and never will have) any spats, feuds, or minor disagreements that quickly degenerated into vicious vendettas, you're probably safe. And unique.

3. In-kind Contributions: Political committees, e.g. the Democratic State Committee or the State Committee of the Green-Rainbow Party, can make unlimited in-kind contributions to candidates. Yes, the word in front of "in-kind" is, indeed, "unlimited."

An in-kind contribution is something of value that you give to a candidate without receiving fair market value, and the regulatory definition includes office equipment, function rooms, and transportation (970 C.M.R. 2.07). Personal services such as writing do not fall within the statutory definition of "contribution" (M.G.L. c. 55, Section 1). In short, there is a lot that a political committee can do to help a candidate in addition to, or instead of, writing a check.

The OCPF seminar was definitely a worthwhile use of my time, and I suspect most if not all the other 14 attendees feel the same way. If you're a candidate, committee chair or treasurer, or have political ambitions of some kind, and would like to find out whether a seminar is scheduled for your area, just click here. I recommend it. After all, as Mike Sullivan would put it, who wants their name next to his in the newspaper?

Tuesday, June 26, 2012

The bill, not the whole bill, but still a good bill

This is a half-a-loaf story, admittedly. But it is a story that shows how the Sierra Club is working to promote environmental and climate justice in a very practical way.

In 2010 I drafted a bill with two major goals: to end the use of coal in our commonwealth and to help the communities and workers affected by any coal-plant closures. The bill's name is the Act to Phase Out Coal Burning in Massachusetts and its number is H. 2612. As well as enjoying the active support of the Sierra Club of Massachusetts, it won the endorsement of the Massachusetts Democratic Party's state convention (thanks to PDA), and of two Green party chapters. Earlier this month, after making a significant amendment, the Joint Committee on Telecommunications, Utilities, and Energy (TUE) voted 15:1 in favor of the bill, which means it now goes to the House Committee on Ways and Means.

Let me explain the significance of the amendment. Originally, H. 2612 gave utilities a simple choice: By 2020 they must either repower their coal-fired power stations to cleaner energy or retire them. In other words, convert or close down. To alleviate any negative effects, such as job layoffs, the Sierra Club proposed a Community Repowering Fund to pay for retraining and other forms of practical support. But only half the bill emerged from TUE. Which part fell to the cutting-room floor? The coal phase-out part.

Losing half the bill is disappointing, so I am hardly doing cartwheels and scattering rose petals. But legislating an end to coal-burning in Massachusetts is now almost unnecessary. Economics is already taking care of it. Most of the electricity we use in this commonwealth comes from natural gas. Although it is a fossil fuel, natural gas is arguably somewhat less harmful than coal in terms of CO2 emissions (methane is another story) and because fracking technology makes natural gas so much cheaper, coal's days are numbered. As a result, our state now hosts only three coal-fired power stations, namely Brayton Point in Somerset, Salem Harbor, and Mount Tom in Holyoke. Salem Harbor is scheduled to close in 2014, and Mount Tom also seems to be winding downHolyoke's mayor, AlexMorse, has appointed a committee to look into alternative uses for the Mount Tom site.

Even though coal-burning is on the way out, it would have been much better to have a timetable with a date certain in the form of the 2020 phase-out deadline. Nevertheless, the survival of the Community Repowering Fund provision makes the bill -- even minus the phase-out provision -- worthy of support.

Underlying the idea of the fund is a simple principle, one that appears in the preamble to the Constitution of the Commonwealth of Massachusetts: "The body politic... is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good." Rather than letting employees bear the whole cost of coal's decline, the Sierra Club bill would spread the cost through society as a whole in a practical application of this constitutional principle of governing for the common good. Pushing the whole cost of closure onto the communities that have already borne a disproportionate burden by hosting coal-fired power stations would not be fair. All of us reaped the benefits of cheap coal-powered electricity and we should all pay -- through taxes -- our fair share when coal plants close.

Coal-company propagandists like to draw false battle lines, pitching workers against environmentalists. This bill demonstrates their mendacity. By advocating for the Community Repowering Fund, the nation's leading environmental organization offers clear proof that it is looking out for workers' interests. If H. 2612 wins the approval of House Ways and Means it stands a very good chance of becoming law and, if it does, former coal-plant employees and their families, friends, and neighbors in Salem and Holyoke should remember that the organization that led the fight was the Sierra Club of Massachusetts.
from coal to clean energy

Monday, June 18, 2012

Does "any person" exclude coworkers?

Does the term “any person” mean exactly that, or does it mean “any person in a supervisory capacity or with managerial authority”? The former, said the United States District Court for the District of Massachusetts last month in Martin v. Irwin Industrial Tool Company.
But a recent post in Business West suggests that the court’s interpretation of the Massachusetts anti-discrimination statute was wrong. At issue are two paragraphs within section 4 of chapter 151B, which makes it unlawful for “any person” to discriminate or to “coerce, intimidate, threaten, or interfere with” another person in the enjoyment of their rights under the statute. The court’s supposed error was holding that the statute allows victims of sexual harassment to sue the harasser as an individual, even when that individual is not a supervisor. According to the post, the way the court construed the term “person” defies the intent of the Legislature and offends public policy. I disagree.
With all due respect to the attorney who wrote the post, the court’s decision is the only reasonable construction of the clear, unambiguous language of the statute. It is also consistent with the way the Massachusetts Commission Against Discrimination (MCAD) has been applying the law since 1994. The MCAD’s Sexual Harassment at Work Guidelines make this clear, citing the Commission’s 1994 decision in Carney v. Town of Falmouth Police Department.  If this was not how the Legislature intended the MCAD to apply the term “person” in the context of liability for sexual harassment, it has had 18 years to correct the situation.
As for the suggestion that in the context of sexual harassment claims “person” only means employer or an agent acting on behalf of the employer, the court pointed out that several provisions of the the statute make a distinction between individuals and employers. Paragraphs 9, 9A and 11A, for example, apply to “an employer” whereas paragraphs 4 and 4A — at issue in Martin — apply to “any person.” Excluding ordinary coworkers from the scope of paragraphs 4 and 4A would be reading into the statute an exception that the Legislature did not intend to make.
With regard to public policy, there is nothing novel, misguided, or unsettling about the way the United States District Court construed the term “person” in this case. To the contrary, over many years employers and employees alike in Massachusetts have reasonably relied on the MCAD’s consistent rulings on this issue. If the US District Court had departed from the MCAD’s decisions the outcome would have been confusion and uncertainty, neither of which constitute sound public policy.

Tuesday, May 15, 2012

Short video about workers' rights in Massachusetts

Massachusetts is an "at will" employment state, but what does that mean in practice? Are employers free to fire workers for any reason at all? For a short video about some of the key exceptions to the at-will rule, click here or on the image below. 

Saturday, May 12, 2012

Commission sends ACTA question to court

Is the Anti-Counterfeiting Trade Agreement (ACTA) compatible with the treaties governing the European Union, in particular the Charter of Fundamental Rights? 

That is the question before the Union’s highest court. John Clancy, the spokesperson for Trade Commissioner Karel De Gucht, issued a press release dated May 11 confirming that the European Commission has referred the issue of ACTA’s legality to the European Court of Justice. Under articles 207 and 218 of the EU Treaty, ACTA needs the consent of the European Parliament as well as ratification by the Member States. But ACTA simply does not have the parliamentary votes to pass.

The Greens are unequivocally against the measure, as are the Progressive Alliance (the Socialist group), the Liberals, and the United/Nordic Green Left. There are 736 members of the European Parliament (MEPs)  so the treaty would need 368 votes in order to move on to state-by-state ratification. With the anti-ACTA forces comprising four of the political groups that account for more than 368 MEPs, and only an up-or-down vote available at this stage, ACTA seems to be effectively dead. Sending the matter to the court seems like an attempt to keep it on life support, which is why the Socialist group welcomed an earlier decision by a parliamentary committee not to do so. For a video of the group's leader, Hannes Swoboda, explaining why the Parliament should treat the future of ACTA as a political matter not a legal one, click here.  According to the Greens, the Commission's referral to the court may bring "an important dimension to clarifying the legality o the document" but will not interfere with Parliament's timetable, with a vote on ACTA happening very soon.

Commissioner Karel De Gucht

Thursday, May 10, 2012

When is teaching inherently religious?

Is the teaching of Hebrew inherently religious? That is the key question in a discrimination case currently before the highest state court in Massachusetts. On May 8, the Supreme Judicial Court heard arguments in Temple Emanuel of Newton v. MCAD, which started in August 2008 when a teacher filed a charge of age-based discrimination (hostile work environment and discriminatory discharge) with the Massachusetts Commission Against Discrimination (MCAD).

In most cases, after the MCAD has served the complaint the respondent (defendant) submits a document called a position statement, after which the complainant (plaintiff) offers a rebuttal. Then, when the papers from both sides are in, the MCAD holds an investigative conference. But this case is different.

After receiving the complaint, the respondent, Temple Emanuel, went to superior court for an injunction claiming that an MCAD investigation would violate its right to the free exercise of religion under the First Amendment. The argument succeeded, and the superior court declared that the MCAD lacked subject matter jurisdiction and permanently enjoined it from investigating the complaint. Following the MCAD's appeal, the Supreme Judicial Court took up the case.

In its brief, the MCAD points out that religious institutions are only exempt from anti-discrimination laws in a very narrow set of circumstances, such as when the employee in question has a "ministerial" function.  Teachers at parochial schools do not usually fall into this category.  While the Temple does not dispute this, it contends that the duties of all teachers at its school are "primarily religious" because they provide the students "with educational and religious instruction in all aspects of Conservative Judaism."  In instructing her students in Hebrew at this particular school, the complainant was doing something inherently "religious in nature," the Temple argues. In essence, the respondent contends that teaching at the school cannot be, as a matter of definition, secular.

That argument persuaded the Superior Court, which held that learning Hebrew was "part and parcel of the students' study of Jewish prayer, texts, and rituals" thereby rendering the teacher's job "ministerial." Will the SJC agree? If so, the case will have implications for employees at many other religious schools in the commonwealth. We shall have to wait and see.

Tuesday, May 8, 2012

Traffic Light Coalition

For election law aficionados and dispute-resolution practitioners alike, the news from Germany's northernmost state of Schleswig-Holstein provides some helpful insights into the dynamics of multi-party negotiations. Although the Pirate Party's rise continues, the stranger story is how a quirk of Schleswig-Holstein's version of list PR is pushing a small ethnic party to the fore. And despite the fact that the state is a relatively small one, the election's impact extends all the way into the federal parliament.

The Greens

It Takes Three

The recent elections left the two major parties, the Social Democrats (SPD) and the Christian Democrats (CDU), with 22 seats each in the 69-member parliament. For a workable majority, one of them will have to form a coalition with at least two of the smaller parties. The Greens obtained their best result to date, with just over 13% of the votes and 10 seats. The Free Democrats (FDP) managed to avoid collapse, but with just six seats now find themselves on a par with the new Pirate Party. The fifth party, and likely coalition partner with the Social Democrats and Greens, is the South Schleswig Voter Federation (SSW), which brings us to a curious feature of Schleswig-Holstein's election laws.

The Odd One Out

To win seats in the state parliament, a political party has to obtain at least five percent of the votes statewide. The same principle applies at the federal level, where the five-percent threshold helped keep extreme left-wing and right-wing groups out of office. But in the late 1970s and early 1980s it also served as an incentive for various anti-nuclear organizations to form the Greens. Coalescing into one electoral list enabled the Greens to gain a toehold in parliament, but in the years immediately after German reunification the five per cent threshold proved insurmountable.

However, the SSW, which represents the Danish and Frisian minorities in Schleswig-Holstein, does not have to meet this hurdle. As a result of a 1955 agreement with Denmark, the SSW is exempt from the fie percent rule and the party's special status has, until now, kept it from a king-making role. The last time the SSW looked poised to put the SPD into office, the CDU threatened to end the party's exemption from the five percent rule.

But with a combined force of just 28 legislators, the CDU and the Free Democrats (which had ruled together since 2009) cannot form a government. Similarly, a Green-SPD partnership would still find itself three seats short of an overall majority. This means that the SSW is now pivotal. Because the party's trademark color is blue, commentators have dubbed the putative new government the Danish Traffic Light Coalition (Denmark's traffic signals are red, green, and blue).

Pirate Power

But for the anomalous SSW, the pivotal party would have been the Pirates. The new digital-rights party's growing pains might have made it an unstable coalition partner over the lifetime of a parliament. On the other hand, as a party with a growing legislative presence across Europe and clear (albeit narrow) legislative priorities, the Pirate Party could have been a more predictable negotiating partner. With its ethnic base and almost automatic parliamentary presence the SSW has no incentive to grow, whereas the Pirates need to maintain momentum if they are to keep jumping over the five per cent hurdle. As a party that would benefit from power by obtaining specific policy commitments from the SPD, the Pirates might be easier to bargain with and lock into a long-term agreement.

National Impact

Ironically, by avoiding a complete rout the FDP in Schleswig-Holstein has made life more difficult for the national leadership.
Guido Westerwelle

Wolfgang Kubicki
Credit for the party's survival is going to Wolfgang Kubicki, the FDP's leading candidate in the state, to the detriment of the federal chair, Phillip Roessler, and parliamentary leader Guido Westerwelle.

In addition to its effect within the FDP, the state elections will have an impact on the composition of the federal legislature.

In the U.S., a state's legislative elections will not affect the composition Congress. Gone are the days when state assemblies chose U.S. senators. But the upper house of Germany's bicameral parliament resembles the United States in the days before direct elections. In Germany, each state government sends a group of delegates to Germany's upper house, the Bundesrat, where the delegation votes as a bloc. So Schleswig-Holstein's current CDU-FDP delegation to the Bundesrat will soon be replaced by one that reflects the partisan make-up of the new state government, with implications for the agenda of Chancellor Angela Merkel's Christian Democrat-Free Democrat government.


In the past, the five per cent hurdle did what its post-War designers hoped, and excluded small extremist parties from elective office. At the national level, one unforeseen consequence of the rule was to encourage various ecology and anti-nuclear factions to join together as Green lists. The decision to carve out an exemption for the SSW in Schleswig-Holstein may produce yet another unforeseen consequence for German politics.

Thursday, May 3, 2012

Looking for work? First, get a job.

“Must be currently employed” is a stipulation that employers in Massachusetts are free to put in their job advertisements. The jobless need not apply. Telling people that the very fact they are unemployed renders them unworthy of consideration is not only unreasonable but also discriminatory.  

New Jersey, Oregon, and the District of Columbia have banned advertisements of this kind, and the National Employment Law Project says that a dozen more states are considering similar measures (check out the MSNBC video on their site). But the Obama administration’s effort to outlaw the practice nationwide through the American Jobs Act is making no headway in the Republican-controlled Congress, and so far there is no state law in Massachusetts expressly prohibiting this particular form of discrimination.

In the meantime, because unemployment is higher in communities of color the current anti-discrimination statute may provide some protection for people on the receiving end of anti-jobless bias. For example, the March 2012 statewide unemployment average in Massachusetts was 6.4%, but the rates were higher in cities where most of the residents are people of color. In Holyoke the March unemployment rate was 9.3% and in Springfield it was 10.1%.  So in the Pioneer Valley region as a whole, an advertisement that expresses a bias against the unemployed will have a disparate impact on people of color. It is possible, therefore, that a would-be applicant who is African-American or Hispanic could have a claim under Chapter 151B. 

If you think the law should stop employers from ruling out applications from people who are simply looking for work, or if you know of any organizations in Massachusetts that are pushing state-level legislation to address the problem, please let me know.

Sunday, April 8, 2012

Euro Court looks at ACTA

In the face of strong opposition to the Anti Counterfeiting Trade Agreement (ACTA), the European Commission has asked the EU's high court to review the measure's constitutionality. According to the Commission's ACTA site  the agreement makes no change to EU law and "does not favor industry over human rights." Nevertheless, the key question before the European Court of Justice (ECJ) is whether ACTA would infringe basic human rights such as freedom of expression. 

Whatever the ECJ's decision, final power over the act lies with the legislature, which is more than can be said here in the US (see below). If ACTA does not win a majority of the votes in the European Parliament, the EU will not be able to ratify the agreement. 

Intellectual property (IP) serves as a mainstay of the European economy, says the EU Commission, and protecting IP means protecting jobs for European workers. Censorship and online repression are job killers, say digital-rights proponents. So will ACTA promote creative expression or stifle it? 

The Commission's fact-sheet claims that global businesses are victims of IP theft by "organized criminal organizations" (sic), that the amount of counterfeit goods entering the EU tripled between 2005 and 2010, and that ACTA will protect European jobs. But ACTA's goal, according to the Electronic Frontier Foundation, "is to create a new standard of intellectual property enforcement above the current internationally-agree standards... and increased international cooperation including sharing of information between signatory countries' law enforcement agencies." 

Critics say that powerful media corporations want a new tool for stopping file-sharing; ACTA will turn Internet service providers (ISPs) into the industry's police force and judiciary, they allege.  For a short video by ACTA opponents, La Quadrature du Net, click here.

Meanwhile, leading the anti-ACTA effort in the United States Senate, Senator Ron Wyden (D-Or) is trying to claw back the treaty-making power that Congress arguably ceded to the President when it enacted the Prioritizing Resources and Organization for Intellectual Propery (PRO-IP) Act in 2008. If Wyden's amendment to the jobs bill survives, Congress will have an opportunity to vote on ACTA. Otherwise, the treaty acquires the force of law without having to go before the Senate for ratification.

Whatever the merits of ACTA, European citizens have the chance to weigh in on the issue because the ultimate decision over the treaty rests with their legislators. In the United States, that is not the case. If you would like to contact your Senators about ACTA and the broader question of the Senate's ratifying authority, click here.

Tuesday, March 27, 2012

Corporate Limits Redux?

Opponents of untrammeled corporate campaign spending may have cause for optimism if a conservative organization “dedicated to fighting environmental extremism” persuades the Supreme Court of the United States to hear its case.

American Tradition Partnership, Inc., (ATP) is challenging Montana’s campaign contributions law, the Corrupt Practices Act of 1912. Unlike the relevant Massachusetts statute (M.G.L. c. 55, Section 8) the Montana law does not ban corporate campaign contributions outright. In fact, corporations are free to make campaign contributions so long as they solicit them from employees and shareholders, then pass them on to candidates via separate, transparent accounts, and file two simple forms with the state.

When Montana’s state’s supreme court upheld the law, ATP asked the Supreme Court of the United States to stay the decision, effectively granting an injunction. Although the Supreme Court did, indeed, grant the stay the accompanying statement from Justices Ginsberg and Breyer suggests that the Court may be take advantage of the Montana case to revisit Citizens United.

The case is American Tradition Partnerships, Inc. v. Bullock, Attorney General of Montana and you can read about it here

Monday, March 26, 2012

Pirates throw liberals overboard

In the German state of Saarland, the Pirate Party blasted a massive hole below the watermark of the centrist Free Democrats, the Financial Times reports, effectively sinking the Christan Democrats' junior coalition partner in the federal government. With just 1.3% of the votes, the Free Democrats sank below the level parties need to reach in order to win seats in the legislature, while the Pirates -- in their first electoral voyage -- captured over 7%. Unlike the Greens and the Left Party, who Saarland's voters left clinging to the wreckage, the Pirates rode an electoral swell all the way into the state parliament. This makes policy-making in the area of intellectual property even more interesting. 

Politics is changing, clearly
Buoying the Pirate Party is the growing popularity of its signature issues, namely Internet freedom, copyright reform, and opposition to the now dead (or resting) Stop Online Piracy Act (SOPA) and Protect Intellectual Property Act (PIPA). The party's Saarland success is its third noteworthy win in Europe so far, and the resources that come with parliamentary representation seem likely to help the party grow.

How will this affect the European Parliament's deliberations over the Anti-Counterfeiting Trade Agreement (ACTA), which would make it easier for powerful copyright owners to crack down on online infringement? Stay tuned.

Thursday, March 22, 2012

Trademark rights in your own name

Karen Millen
Karen Millen

A lesson in trademark policing from Iceland. Fashion designer Karen Millen (pictured) would like to open a business, and she would like to do so using her well-known name. But administrators at Icelandic bank Kaupthing are telling her she can't.

Intrigued? Here's the story.

Tuesday, March 20, 2012

Rumbles, real and legal

Dryden, NY

Earlier this month a 4.7 magnitude earthquake hit Greenbrier, Arkansas, possibly as a result of hydraulic fracturing (fracking). Two quakes in Britain last year prompted the drilling company to admit that the events were "probably" the result of its activities. Given the fact that natural gas helps drive climate change, and with so many questions about the local impact of fracking, is there anything communities can do to prevent fracking?

As the people of Dryden, NY, will confirm, the answer is yes.
In 2011 the town enacted an ordinance prohibiting all activities relating to natural gas exploration, production, and storage. Not surprisingly, an energy company sued. More surprisingly, on February 21, 2012, the trial court upheld the ordinance and granted the town's motion for summary judgment. After reviewing the state's Oil, Gas & Solution Mining Law (OGSML) Judge Phillip R. Rumsey found that the legislature had not intended to preempt the field, and that OGSML allows a municipality "to completely ban oil and gas production within its borders."

Not a legal earthquake, admittedly, but certainly a mild tremor.

This may not be the last word in the case of Anschutz v. Town of Dryden, but it should encourage active citizens to keep up their grassroots work in the struggle for climate justice.

Thursday, February 2, 2012

Court closes door on associational claims

A recent federal court decision has serious implications for people who would like to pursue claims that they were discriminated against on the basis of their relationship with a person with a disability. The name of the case is Ayanna v. Dechert, Civil Action No. 10 12155-NMG, and on January 6, 2012, a judge in the United States District Court for the District of Massachusetts dismissed an important part of the plaintiff’s complaint.

The plaintiff did not claim that he had a disability himself, but rather that the defendants (his former employers) had discriminated against him because of his “association with a disabled individual,” namely his wife. He alleged that this violated the Massachusetts anti-discrimination law, M.G.L. c. 151B.

There is an important distinction between federal and state law. It is clear that plaintiffs can bring claims of this type under the federal Americans with Disabilities Act (ADA) because the statute contains an express provision to that effect.  But the equivalent state law, Chapter 151B, does not. The scope of Chapter 151B does not expressly extend to somebody who has a relationship or association with a disabled person. Even though the Massachusetts Commission Against Discrimination (MCAD) had previously ruled in favor of associational claims, this statutory difference was fatal to the plaintiff in Ayanna v. Dechert, and the judge allowed the defendant’s motion to dismiss the associational-discrimination count of the complaint. The federal court stated that the MCAD’s interpretation was not “binding” and lacked the “force of law.”

By holding that Chapter 151B, unlike the ADA, does not give rise to associational claims, the court followed the reasoning of the only state court to issue a ruling on the issue, the Superior Court for Essex County in Brelin-Penney v. Encore Images, Inc., 27 Mass. L. Rep. 254 (Mass. Super. Ct. 2010). In that case, the court held that in the absence of legislation, the non-disabled plaintiff could not qualify as a member of a protected class on the basis of a relationship with a disabled person.

Clearly this is a question of state law not federal law, so the plaintiff in Ayanna v. Dechert asked the federal district court to send the question to the highest state court, the Supreme Judicial Court (SJC). But the judge declined, so there is still no conclusive decision on the matter of associational claims in Massachusetts. Legislative action would clarify the matter, and one state representative, John Scibak of South Hadley, has filed a bill to bring 151B into line with the ADA. You can read Representative Scibak’s bill, H. 501, by clicking here.

Unless and until the SJC rules on the issue, or the Legislature amends Chapter 151B, Ayanna v. Dechert and Brelin-Penney v. Encore Images are the only authorities that provide guidance for potential litigants. As things stand, it seems highly unlikely that a claim for associational discrimination on the basis of disability would survive a motion to dismiss.