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. 

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.

Trademark rights in your own name

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.

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.

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.

Green Confusion

There are two national political parties in the US that lay claim to the title Green. As you may have noticed, neither of them can claim to have helped elect any Green candidates recently. But that doesn't stop them fighting each other, rather like the feud in the Life of Brian between the Judaean Popular Front and the Popular Front of Judaea (splitters). Now the Green-on-Green rivalry has spilled over into intellectual property law.

After stymying the trademark application of the Green Party of the United States last year, the Greens/Green Party USA has filed its own application. It would like federal recogniton for the exclusive right to use its name as a trademark. Last year's TTAB decision held that the competing parties' marks are confusingly similar.

This is not the first time the Greens/Green Party USA has filed a trademark application. In filed once in February 1992 but failed to respon to an Office Action, so the USPTO deemed the application abandoned.  It tried again in August 1994, only to abandon the application again.

Third time lucky?  In March 2005, the Greens/Green Party USA filed another application.  Much correspondence ensued.

But then, on April 5, 2011, the United States Patent & Trademark Office issued the Notice of Publication, which started the clock running on the 30-day opposition period.  Will the Green Party of the United States file timely opposition? The clock is still ticking.

Pirate Party Making Waves

Ryan Moffitt is running for the office of state representative in Florida's 86th district.

Why does this merit a mention in my law-office blog, as opposed to my political blog, Mass Greens? The reason is that Mr. Moffitt's candidacy bridges third-party politics and intellectual property law, two subjects that rarely overlap, at least in my experience.

In addition to being a candidate, Mr. Moffitt is chair of the Florida affiliate of the Pirate Party, which campaigns for a thorough overhaul of copyright, patent, trademark, and privacy laws here in the US and at the international level. The party started in Sweden and now boasts outposts across Europe and the United States, including Massachusetts. 

One of the main planks in the Pirate Party's platform is the revision of the Copyright Act. At present, for works created after January 1, 1978, copyright lasts for the life of the author plus 70 years. In other words, copyright is descendible.  This means that the copyright in any given work outlives its creator, so that authors can leave their copyright to their legatees.

We can bequeath and inherit copyright just as we can bequeath and inherit other forms of personal property and real estate. A major difference is that the legatee's exclusive right to the copyrighted work evaporates at a certain point, i.e. 70 years after the testator's death.

Of course, 70 years is a pretty long time. When I started practicing law back in 1998, copyright lasted for life plus 50 years. Even 50 years is quite a long time for the public to have to wait for the exclusivity to expire and for a work to enter the public domain.

As the Pirate Party points out, these lengthy terms are a relatively recent phenomenom. Originally, Congress set a much shorter life-span for copyright, just 14 years. And that is the length of time that the Pirate Party would like the Copyright Act to revert to. It would also like to repeal the Digital Millennium Copyright Act and create a presumption in favor of derivative works constituting fair use, shifting the onus from the defendant (who currently has to prove that a derivative work is fair use) onto the plaintiff to prove that it is not.

The party also has opinions about trademark law, and I would like to know what the Pirates make of a new proposal before the Massachusetts Legislature. Senator Steve Tolman's bill (Senate 1635) would require courts interpreting Massachusetts trademark law to construe it in a way that is consistent with federal trademark law. 

Somewhat unusually for a Massachusetts statute the new law would contain an explicit intent provision, stating that it is the intent of the Legislature "to provide a system of trademark registration and protection substantially consistent with the federal system."

Well, Pirates and non-Pirates alike: What do you think? A sensible housekeeping measure or a slippery slope?