More re the Constitution and Fair Use
Not everyone agrees with Ed Stroligo regarding the lack of Constitutional underpinnings of the fair use doctrine. The defense is arguing a Constitutional (First Amendment) basis for fair use in the ElcomSoft/Sklyarov case currently pending before Judge Whyte in the Northern District of California. (See also Ernie the Attorney's discussion of the case and overarching digital rights issues.)

-Later: Still pending for decision before Judge Whyte is the defense's Motion to Dismiss based on its argument that the DMCA violates the First Amendment. [llrx]

Straight Talk About Fair Use
Ed Stroligo at Overclockers.com posted commentary yesterday that points out the distinction betweeen a Constitutional right and a legal one, as he characterizes the "fair use" exception permitting certain uses of copyrighted material. "In short, you have no constitutional right to convenience," writes Ed, in an interesting discussion of the Reimerdes case. [Thanks, Sabrina.]

April Fool
In an abrupt about-face that has fattened the coffers of academia, LawMeme announced its new appointment as Voice of the Copyright Industry.

Equally foolish: the Iowa law firm of Beckman & Hirsch has installed a Web cam in its reception room, according to the ABA Journal. A member of the firm says it helps him gauge a client's mood before they meet. And, that it helps him track down his partner when he slips out to an empty desk in the camera's line of sight to get some uninterrupted work done. (Access to the camera's feed is password-protected and encrypted, so no, we can't all enjoy these fascinating images...)

Naked Justice
Beds is back, writing this month about civic beautification: "If someone with no money is 'judgment-proof,' I think it can be safely said that someone who constructs sculptures of dancing neon penises in top hats is 'emotional distress-proof.'"

Look Before You SLAPP
In another SLAPP (Strategic Lawsuits Against Public Participation) case in California this week, the anti-SLAPP statute was applied to give litigants and lawyers protection against malicious prosecution claims. In Jarrow Formulas, Inc. v. LaMarche (B146708, 3/25/02), Sandra LaMarche, a graphic artist, had a dispute with her client, a vitamin manufacturer, over the ownership of artwork created by LaMarche for the company. According to declarations filed in the case, the owner of Jarrow behaved outrageously, attempting to sabotage LaMarche's relationships with other clients and hurling profanities like rice at a spring wedding. Jarrow sued LaMarche about the artwork ownership issue, and LaMarche ultimately won. During the case, however, LaMarche and her attorney filed a cross-complaint against Jarrow for interfering in her other business relationships, which she lost. Jarrow then sued LaMarche and her attorney for malicious prosecution, arising from the unsuccessful cross-complaint.

The Court of Appeal found the malicious prosecution case was barred by California's anti-SLAPP statute, and reversed the trial court on this point. All actions in filing and advocating the cross-complaint were found to be protected exercises of First Amendment rights, and the malicious prosecution claim was found to be a prohibited attempt to chill those rights. LaMarche's cross-complaint was an exercise of her right to petition, and her lawyer's written and oral advocacy were protected speech. The malicious prosecution claim thus was stricken, and LaMarche and her attorney awarded their costs and attorneys' fees.