State Attempts To Ban Online Porn Associated With Backwardness

Attempts to limit access to online porn are exclusively found in states that are morally, economically, and politically backward (via CNN).

U.K. To Regulate Many Online Forums Out Of Existence

I don't like the European Union's General Data Protection Regulation (GDPR), and this is worse.

This, from Techcrunch, seems like a good summary of a bad situation facing this blog: Death Of A Forum: How The UK's Online Safety Act Is Killing Communities.

This blog is just that: my personal blog, with comments.

Over the past two decades a lively community has evolved in the discussion threads. However, the Online Safety Act threatens to impose impossible hurdles on the continuation of open fora in the UK. The intent is officially to protect adults and children from illegal content, but ... there's no lower threshold on scale. A blog with comments is subject to exactly as much regulatory oversight as Facebook. It applies to all fora that enable people in the UK (that would be me) to communicate with other people in the UK (that's a whole bunch of you), so I can't avoid the restrictions by moving to a hosting provider in the US. Nor am I terribly keen on filing the huge amounts of paperwork necessary to identify myself as the Trust and Safety officer of an organization and arrange for commercial age verification services (that I can't in any event integrate with this ancient blogging platform). And the penalties for infractions are the same—fines of up to £18M (which is a gigantic multiple of my gross worth).

And it comes into effect on March 15th.

Accordingly ...

The blog will continue to exist.

However the comment threads may be closed for good after March 14th.

(I don't know for sure yet. It's very late in the day but the ICO may see sanity and provide some sort of sanity clause for hobbyist sites.) 

. . . 

Update: According to this in-depth article about the Act there appears to be a limited exemption for "limited functionality services" that covers blog comments—"but it may not include them if users can reply to each other - this is unclear". Ofcom are expected to clarify their regulations in January, so we can live in hope for a little longer. 

Also: "The OSA puts obligations on the service provider, so if you host a community on a platform such as Discord or WhatsApp, the OSA doesn't directly affect you." (So I may be able to open a forum on Discord instead.) 

Also: my quick first pass risk assessment per Ofcom guidelines is that this blog is, to put it mildly, at low risk for priority illegal content, if only because it doesn't provide most of the types of communication channel Ofcom is concerned with (eg. generating and hosting video and images, enabling direct 1:1 private communication between users).

From Sci-Fi author Charlie Stross's blog.

Selected Lesser Grievances

There are lots of big issues facing the United States, the biggest of which is the existential threat to its continued functioning as a democracy posed by Donald Trump's candidacy in this year's Presidential election. And, this blog spends plenty of time thinking about those big issues.

But, the world is also full of things that aren't "big issues" but are minor annoyances and lesser grievances that it would be nice to see remedied, even if they aren't really make or break issues. This post recounts some of them.

Computer System Treatment Of Hyphenated Names And Similar Issues

* There ought to be a law that mandates that government and big business computer systems accommodate people who have hyphens, apostrophes, spaces, and just one or two characters in their names. This may have been an issue at the start of the computer age, but we have reached a point where it is no longer that hard to do.

Fraud

* We do a poor job of dealing with fraud perpetrated by phone, text message, email, social media, the Internet more generally, and the financial system. It should be possible to click a 9-1-1 style universal fraud reporting code and send reports of fraudulent activity instantly to the appropriate law enforcement agency and telecommunications providers, with no further effort from the person reporting it required. This should shut down the fraudster's phone number, and email accounts, social media accounts, and freeze any associated financial accounts almost instantly, and launch investigations as a matter of course into the perpetrators and into the institutions used by them to perpetrate the frauds. The cost of an individual fraudulent communication is small and the fraudsters count on that to shield them from investigations, which when they do happen aren't nimble enough to address it because the perpetrators are long gone. Yet, we have a system that is much better a dealing with the much less serious problem of copyright infringement than it is at dealing with fraud. 

* We should do a better job of dealing with deceptive business practices by credit reporting agencies that try to trick you into paying for services that they are required to provide for free.

* We should do a better job at shutting down businesses that dupe people into paying to get government services that are available cheaper or for free from the actual government.

* Credit cards should have PIN numbers the way that ATM cards do. This would dramatically reduce credit card fraud and reduce the incentive to steal credit cards.

* Food labeling should be more tightly regulated to discourage spurious and misleading health claims like "antibiotic free" in foods where antibiotics aren't allowed anyway, or claims that a food that ordinarily would have sugar but not fat anyway is "fat free".

Regulated Occupations

* We should have a central database of people who are sanctioned or "disbarred" from particular professions in a particular state or local jurisdictions, so that these people are prevented from going to some other state or local jurisdiction, or some other licensed occupation where the same conduct would also be disqualifying.

* The construction trades should be regulated at the state level, not the local level. This prevents an unreasonable barrier to entry for legitimate reputable construction contractors, which causes construction trade licensing to be ignored or overlooked, while also making it too easy for someone who has had their construction trade license rightfully revoked to just go to another locality that hasn't caught up with them yet.

Arrest Records

* We should also have a way of purging the official arrest records of people who are arrested or charged, but are ultimately not convicted of anything, from public records and databases (that do not at least disclose the exoneration with the arrest record report). Similarly, there should be a better process to purge or annotate criminal convictions that are vacated.

Mail, Package Delivery, And Porch Piracy

* The U.S. Postal System and all other package delivery firms should be liable for damages when it delivers a package to the wrong address (or doesn't deliver it at all), preventing the intended recipient from receiving it, even without requiring the sender to procure insurance, at least up to a certain dollar amount. 

* A parallel and similar system for dealing with fraud via mail to the one suggested above for telecommunications fraud should also be put in place. Violators (both firms and their managers and principals) should have their right to send mass mailings suspended for some period of time in addition to any other relief.

* A certain percentage of packages should have tracking chips that can be used to locate the packages if they are taken by porch pirates, allowing the perpetrators to be found, and creating too high of a risk for people contemplating porch piracy to consider doing so.

* Mutual funds should be required to make information about their funds publicly available, but mailing prospectus-like disclosure documents to their investors on a regular basis just kills trees without providing meaningful improvements in investor knowledge.

* The same is true of privacy policies. Require them to be made available in some standardized place, but don't mail them out to everyone connected to a business.

* Low advertiser postal rates for "junk mail" that don't reflect reduced costs for the postal system due to, e.g., pre-sorting, should be abolished and instead, all mail should have to pay first class mail rates. If it isn't worth sending a first class mail rates, it isn't worth bothering people with the unsolicited junk mail.

* Congressional franking privileges should be abolished and replaced with a budget for postage for each U.S. House and U.S. Senate office, based upon the population of the state in question for U.S. Senate offices. This privilege is widely abused by office holders and undermines the economic viability of the U.S. Postal Service.

* Mail-In Ballots should have business return postage type treatment so that the voters doesn't have to attack any postage to return their ballot through the mail, paid for by the governmental body conducting the election.

* Registered voters should indicate (in a database that is not public record at an individual level, just at a statistical level), their preferred language for election related information and communications. Thus, election related disclosures and ballots would go to voters only in their preferred language rather than in both English and Spanish with other language versions available upon request. This would make ballots more readable, and cut in half the amount of paper wasted in pre-election disclosures. It would also significantly reduce the burden on voters who need to receive translations into languages other than English or Spanish.

Long Ballots 

Ballots are too long, in part, because we have voters do too much. But long ballots discourage voting generally and lead to uninformed decision making.

* We should not elect, at any level coroners, surveyors, engineers, dog catchers, assessors, treasurers, clerks, or secretaries of state, who are supposed to be carrying out technocratic tasks with only limited discretion.

* Elections should not be administered by partisan elected officials, or by partisan political appointees.

* Judicial retention elections like the ones held in Colorado make ballots much longer (just short of half the questions on my ballot this year are judicial retention elections) and demand a great deal of effort from voters who try to make those decisions in an informed manner, but provide very little benefit. Typically only one or two judges in the entire state are not retained in any election cycle, and sometimes, none are. Only about 1% of judges are ever removed this way, which inadequate purges inadequate judges. And, a significant share of judges who are removed are removed for decisions that are legally required but unpopular. Simply put, the general voting public is ill-equipped to make this decision even with state supplied information pamphlets, and it is a great burden on voters that makes ballots too long. There might be a place for retention elections, but only in cases which are singled out as "high risk" in some reasonable manner, for the voting public to focus upon.

* In Colorado, the Taxpayer's Bill Of Rights, requires voters to approve tax increases and to authorize retention of revenues from existing taxes if those revenues grow fasters than a formula in the state constitution. I don't have a problem with the first kind of voting requirement for new taxes. But, votes on retention of revenues from existing taxes (called "debrucing" ballot issues, after Doug Bruce, the author of TABOR in Colorado) should not be required and make our ballots unnecessarily long.

* Similarly, while voters should have to authorize increased debt limits for local governments, they should not have to authorize incurring debt at levels previously authorized by voters and paid for with existing taxes, after the original debt is paid down, at least in part.

* The CU Board of Regents and the state school board, should not be chosen by the general public in elections, let alone, in partisan elections.

* Perhaps in addition to petitions to establish a minimum threshold of support for a ballot measure before putting it on the ballot for the general public to consider, citizen's initiatives should face a public opinion poll test and only be granted ballot access if it can garner at least, say, 35% support, in a public opinion poll conducted by a reputable and certified firm.

Notarization

* The requirement that statements made under penalty of perjury be presented in a notarized affidavit made under oath should be replaced with a rule allowing unnotarized declarations made under penalty of perjury in court documents, something that is already the case in the federal court system, and the court systems of Colorado and Utah, at least.

* Notarized but not otherwise witnessed wills are valid in Colorado. This should be the norm nationally.

Copyrights, Rights Of Publicity, And Privacy

Copyright laws are too strong for a digital age. Some examples:

* There should be more legally binding safe harbors for fair use. Far too many cases are in gray areas decided on a case by case basis by a particular judge and jury.

* Some version of a fair use defense or dramatic remedy limitation should be available in the cases where someone is sharing content made available by a copyright holder or a licensee for free on the Internet or via freely available broadcast television or radio.

* There should be a mechanism for mandatory licensing of orphan works and for translations of works that are not available in a particular language.

* There are overly expansive protections for derivative works in areas such a fan fiction that should be dialed back.

* Statutory damages in lieu of actual economic damages, and the availability of attorneys' fees in actions for copyright infringement, should also be greatly curtailed. In general, copyright remedies and rights should be closer to an unjust enrichment tort remedy and less like a property right. 

* Rights of publicity should be governed by a single, preclusive, federal law, not by a mishmash of state laws.

* Europe's General Data Protection Regulation (GDPR) is far too expansive and far too protective of privacy rights to the detriment of other legitimate interests.

* The scope of the applicability of the GDPR to people who are not in Europe, but can have dealings with Europeans over the Internet is far too unclear.

Traffic Laws

* Speed limits should reflect the speed that an ordinary reasonable driver would travel on a road as it is designed. Local governments should not be allowed to set lower speed limits than the road conditions reflect in response to local community pressure. If a local government wants traffic to move more slowly than the legally authorized speed limit given the road conditions, it needs to redesign the road, rather than just creating a speed trap.

* When push comes to shove, bicycles should be regulated as pedestrians not as motor vehicles. They should go on sidewalks and designated bike paths in most cases, rather than being expected to share designated highways and arterial streets with automobiles. A bicycle crashing into a pedestrian is much less serious than a car crashing into a bicycle.

Debt Collection

* It should be a serious offense to try to collect zombie debts that are barred by the statute of limitations or have been discharged in bankruptcy.

* It should be a serious offense to try to collect debts from the next of kin of debtors who have not guaranteed the debt in writing, rather than the decedent's probate estate.

Medical Billing

* Until the day when we have universal health care, health care providers to patients with health insurance should be forbidden from trying to collect their bills directly from the patient beyond a health insurance policy authorized co-pay to be paid at the time of service. Any provider that accepts any payment from that patient's health insurance should be required to honor the health insurance company's disallowance of their charges. And, health insurers should have to pay the full allowed charge to the health care provider and then collect the patient's share of that charge under the insurance policy from the patient. Patients shouldn't be put in the middle and as a guarantor in the face of disputes between health care providers and health insurers. A patient should be able to know exactly what he or she will owe simply by reading their health insurance policy.

* Emergency rooms shouldn't be allowed to charge more to someone who errantly went to an ER instead of an urgent care facility for the same services. The task of getting someone to the right level of care takes medical knowledge and should be the responsibility of the health care provider.

* Health care providers shouldn't be allowed to charge different rates for the same work done at a hospital affiliated facility (which is often billed at a higher rate) than at another facility.

* When there are contingent fee lawsuits for personal injuries, health care providers with health care liens on the recovery should have to share the risk in a way that afford the injured person some benefit of the lawsuit according to a standard formula that doesn't have to be negotiated on a case by case basis.

Court E-Filing Discrepancies

* Court E-Filing systems should have much less authority to just reject filings. Instead, if there is problem with the way that the filling was put into the e-filing system, that correction should just be made by the system, and if there is a problem with the document filed itself, it should issue an order to show cause directing the filer to correct it in a clearly described manner before a reasonable deadline to prevent it from being stricken with a loss of the original filing date.

Municipal Ordinances

* Municipalities and local governments should not be permitted to punish ordinance violations with incarceration or arrest. Incarceration should be limited to violations of state laws.

* Colorado should abolish municipal courts and require municipal ordinance violations to be enforced in civil actions brought by city attorneys in county courts that are part of the state court system.

Quote Of The Day

On the other hand -- we’re a court. We really don’t know about these sorts of things. These are not, like, the nine greatest experts on the internet.

- Justice Elena Kagan on February 21, 2023 in the oral arguments in the case of Gonzalez v. Google which concerns the scope of Section 230 immunity under the Digital Millennium Copyright Act.

Twenty-Five Hot Legal Issues

I am a lawyer who sees the issues presented by my clients and the issues I get inquiries about from potential clients. In that capacity I also read essentially all the new published decisions of the Colorado Supreme Court, the Colorado Court of Appeals and most of the new decisions of the U.S. Supreme Court, receive updates in some legal areas from regular services to which I subscribe, and read the Colorado Bar Association and Denver Bar Associations monthly publications on a regular basis.

I sometimes participate in providing answers at Law Stack Exchange and Politics Stack Exchange (where I am a moderator), regularly read How Appealing, the Volokh Conspiracy and at least three law professor's blog (in the sidebar), a blog about the legal profession (About the Law), a blog about legal issues with national security implications (Lawfare, in the sidebar), and economics and politics sites that routinely discuss legal issues. 

I also encounter emerging or increasingly relevant legal issues in the general mainstream media (e.g. CNN, the New York Times, the Washington Post, and the Denver Post), as people ask about or discuss issues on Facebook.  

As a result, I have some sense of what areas of law are emerging, more relevant than they have been previously, or are in a state of flux. 

This post identifies twenty-five of those legal areas (yes, what constitutes one or multiple legal issues is somewhat arbitrary, one could vary the number simply by being more of a lumper or more of a splitter):

1. Jurisdiction, choice of law, and tax issues pertaining to remote work both interstate and international.

2. Jurisdiction, choice of law, income tax, sales and VAT tax, copyright, patent, rights of publicity, defamation, intellectual property licensing, occupational and professional licensing, business licensing, European and California privacy law, terms of service contracts, online fraud remedies, harassment and cyberstalking, obscenity, human trafficking, and revenge porn considerations that apply to Internet commerce and activity.

3. Privacy laws, in general, including those related to health information, doxing, cancel culture tactics, educational information, and information about Internet activity.

4. Laws about the legality of audio and video recording of conversations and events.

5. Non-competition agreements and non-disclosure agreements. 

6. International sanctions laws, war crimes laws, anti-terrorism laws, and extraterritorial jurisdiction.

7. Cryptocurrency issues, especially with regard to income and estate taxation, duties to disclose assets, and money judgment enforcement.

8. Election law (especially election administration law), treason and sedition law, and governmental liability.

9. The propriety of national injunctions, especially in federal public law cases, and issues of forum shopping.

10. Separation of powers issues in the federal government.

11. Dormant commerce clause limitations on legislation.

12. Laws regulated to COVID and public health restrictions.

13. Issues related to abortion law in the U.S.

14. Issues related to gay rights.

15. Gun control.

16. Family law issues in non-traditional families (i.e. in families other than married couples who children, if any, are all traditionally conceived children of both spouses, and other than divorces of such couples), and in non-traditional reproduction means (like surrogacy and IVF).

17. Indian tribe related adoptions, international adoptions, open adoptions, stepparent adoptions, same sex couple adoptions, and means by which a father's parental rights can be terminated to facilitate an adoption.

18. Partition law, i.e. the law of disentangling co-owners of real property outside the context of a divorce.

19. Home owner's association related disputes.

20. Disputes between neighbors regarding property lines, trees, and noise remain surprising relevant and often, surprisingly complex. 

21. Issues related to owning real property abroad.

22. Legal issues related to partial marijuana decriminalization.

23. Laws related to black box AI and machine learning decision making, and AI autonomy.

24. Laws related to the civilian and military of drones (especially airborne drones).

25. The legal status of non-citizens in the U.S. both documented and undocumented, of areas outside U.S. states in U.S. jurisdiction, and of Indian country.

A Bogus Patent On Podcasting Has Been Struck Down

Another blow for freedom.

A year after taking up the case, the US Court of Appeals for the Federal Circuit has ruled in favor of the Electronic Frontier Foundation in its challenge against podcasting patent troll, Personal Audio. The decision is a massive relief for the vibrant and ever-growing medium, which has been operated under the threat of lawsuit for a number of years. 

It’s also part of the EFF’s larger on-going fight against overly broad tech patents. And the organization doesn’t mince words. Daniel Nazer, who has been working closely on the case, is the EFF’s “Mark Cuban Chair to Eliminate Stupid Patents.” 

The case involves Personal Audio’s broad patent for a “System for Disseminating Media Content Representing Episodes in a Serialized Sequence,” which the company used to levy suits against a number of podcast providers, including Adam Corolla, HowStuffWorks, CBS, and NBC. The EFF filed a petition challenging the patent in 2013, urging the US Patent and Trademark Office to take another look at the broad ruling.

From here.

Linking To Infringing Materials Is Not A Copyright Violation

The record is clear that Defendant neither stored nor posted the videos on its website. Instead, third party websites self-evidently did so: the first video is stored on YouTube and the other two on www.elocallink.tv website. Defendant merely linked to those videos on its website, and the links, when clicked, direct users to YouTube and www.elocallink.tv websites. Defendant does not copy, display, or encourage the users to share the videos on its website; although the third party websites appear to do so. More critically, and relatedly, Plaintiffs cannot establish on the facts adduced here that, by merely linking to those videos, without anything more, Defendant displayed the videos publicly.

Nakada + Associates, Inc. v. City of El Monte, 2017 WL 2469977 (C.D. Cal. June 2, 2017).

More SCOTUS Rulings

The latest from the U.S. Supreme Court:

* An Ohio death penalty sentence for a 1985 murder in Jenkins v. Hutton, is affirmed in a per curium opinion (overturning a 6th Circuit reversal) where the jury was not properly instructed regarding how to weigh evidence in the penalty phase of the case, but the objection was not preserved and neither the 6th Circuit nor the defendant could show in a way that met the heavy burden of proof that no reasonable jury would have convicted him had it been properly instructed.

* In Matal v. Tam, a unanimous 8-0 court (although with some concurring opinions) affirmed the determination that a law prohibiting offensive trademarks (in this case for the band "The Slants") is unconstitutional, affirming the en banc Federal Circuit, at least in this context. The statute is "a Lanham Act provision prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a)." Neither of the two concurrences undermine the holding in any way. (The case name was changed between oral arguments and a decision on the merits because the director of the PTO changed in the interim.)

* In McWilliams v. Dunn, the Court's 5-4 decision marks the first dissenting opinion that Judge Gorsuch has joined, which he does with the other conservatives on the court. The Court reversed an Alabama death sentence where the defense was not permitted to obtain a mental health expert as part of his right to effective counsel in his defense to argue their client's insanity as a mitigating factor in the face of evidence that there was a mental health problem present. Neither the state expert's testimony nor brief assistance from a volunteer psychiatrist meet this obligation. A harmless error determination was reserved for the 11th Circuit on remand.

* In Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty. the court finds that "specific personal jurisdiction" (as opposed to general jurisdiction) is lacking in this case brought in a California state trial court in an 8-1 decision. According to the official syllabus:

A group of plaintiffs, most of whom are not California residents, sued Bristol-Myers Squibb Company (BMS) in California state court, alleging that the pharmaceutical company’s drug Plavix had damaged their health. BMS is incorporated in Delaware and headquartered in New York, and it maintains substantial operations in both New York and New Jersey. Although it engages in business activities in California and sells Plavix there, BMS did not develop, create a marketing strategy for, manufacture, label, package, or work on the regulatory approval for Plavix in the State. And the nonresident plaintiffs did not allege that they obtained Plavix from a California source, that they were injured by Plavix in California, or that they were treated for their injuries in California. The California Superior Court denied BMS’s motion to quash service of summons on the nonresidents’ claims for lack of personal jurisdiction, concluding that BMS’s extensive activities in the State gave the California courts general jurisdiction. Following this Court’s decision in Daimler AG v. Bauman, 571 U. S. ___, the State Court of Appeal found that the California courts lacked general jurisdiction. But the Court of Appeal went on to find that the California courts had specific jurisdiction over the claims brought by the nonresident plaintiffs. Affirming, the State Supreme Court applied a “sliding scale approach” to specific jurisdiction, concluding that BMS’s “wide ranging” contacts with the State were enough to support a finding of specific jurisdiction over the claims brought by the nonresident plaintiffs. That attenuated connection was met, the court held, in part because the nonresidents’ claims were similar in many ways to the California residents’ claims and because BMS engaged in other activities in the State. 

The high court finds that the absence of an in-state injury or injury to a resident plaintiff is controlling. The high court is also unimpressed with the fact that the drug giving rise to the product liability is distributed by a California company. The official syllabus also notes that:

The Court’s decision will not result in the parade of horribles that respondents conjure up. It does not prevent the California and out-of-state plaintiffs from joining together in a consolidated action in the States that have general jurisdiction over BMS. Alternatively, the nonresident plaintiffs could probably sue together in their respective home States. In addition, since this decision concerns the due process limits on the exercise of specific jurisdiction by a State, the question remains open whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court.

Statutory limits on federal court jurisdiction probably prohibit the possibility of federal court jurisdiction now, but the decision leaves Congress with the option of potentially changing that statute. which currently limits the personal jurisdiction of federal trial courts to that of a state court of general jurisdiction in the same state, even though this is probably not constitutionally required.

Sotomayor's dissent argues that:

Three years ago, the Court imposed substantial curbs on the exercise of general jurisdiction in its decision in Daimler AG v. Bauman, 571 U. S. ___ (2014). Today, the Court takes its first step toward a similar contraction of specific jurisdiction by holding that a corporation that engages in a nationwide course of conduct cannot be held accountable in a state court by a group of injured people unless all of those people were injured in the forum State.  

I fear the consequences of the Court’s decision today will be substantial. The majority’s rule will make it difficult to aggregate the claims of plaintiffs across the country whose claims may be worth little alone. It will make it impossible to bring a nationwide mass action in state court against defendants who are “at home” in different States. And it will result in piecemeal litigation and the bifurcation of claims. None of this is necessary. A core concern in this Court’s personal jurisdiction cases is fairness. And there is nothing unfair about subjecting a massive corporation to suit in a State for a nationwide course of conduct that injures both forum residents and nonresidents alike. . . . 

It “does not offend ‘traditional notions of fair play and substantial justice,’” International Shoe, 326 U. S., at 316, to permit plaintiffs to aggregate claims arising out of a single nationwide course of conduct in a single suit in a single State where some, but not all, were injured. But that is exactly what the Court holds today is barred by the Due Process Clause. This is not a rule the Constitution has required before. I respectfully dissent. 

In short, this is another manifestation of the Court's longstanding aversion to class action lawsuits. I agree strongly with Sotomayor on this point, but the reality is that the majority's rule is the one I'll have to litigate under for the indefinite future.

* In Packingham v. North Carolina, a unanimous court held that a ban on social media usage for sex offenders was unconstitutional. The official syllabus explains that:

North Carolina law makes it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.” N. C. Gen. Stat. Ann. §§14–202.5(a), (e). According to sources cited to the Court, the State has prosecuted over 1,000 people for violating this law, including petitioner, who was indicted after posting a statement on his personal Facebook profile about a positive experience in traffic court. The trial court denied petitioner’s motion to dismiss the indictment on the ground that the law violated the First Amendment. He was convicted and given a suspended prison sentence. On appeal, the State Court of Appeals struck down §14–202.5 on First Amendment grounds, but the State Supreme Court reversed. Held: The North Carolina statute impermissibly restricts lawful speech in violation of the First Amendment. 

Basically, the judges find that the ruling is not sufficiently narrowly tailored to the objective to meet constitutional must and must be limited to postings that could harm children or facilitate contact with children.

* Ziglar v. Abbasi is procedurally weird. Two Justices of the eight person court (both liberal whose involvement would have resulted in the opposite conclusion on the merits) recused themselves and Justice Gorsuch did not participate, and two Justices dissented, so the majority opinion commanded only 4 votes out of 6 justices participating (still a quorum). SCOTUS blog explains that the release of the decision involved some drama, no doubt, in part, because the liberal wing of the Court was pawned on procedural grounds allowing a minority of the court to prevail when it wouldn't have been able to otherwise. The dissent accurately discerns that this ruling is dangerous to the future of liberty in the United States. An analysis at the Atlantic explains why this is the case - basically because it lets officials get away with admittedly wrongful conduct against innocent people in violation of their civil rights in the name of the War on Terrorism.

Kennedy’s second opinion is in Ziglar v. Abbasi, about whether a so-called Bivens civil rights action is available to six people of Arab or South Asian descent detained after the Sept. 11, 2001, terrorist attacks who challenged the conditions of their confinement. 

Kennedy’s opinion for a four-justice majority (out of six participating) holds that most of the Bivens actions brought by the detainees should not have been allowed to go forward. 

“Judicial inquiry into the national security realm raises serious separation-of-powers concerns,” Kennedy says. He is joined in full by Roberts and Alito, and for the most part by Thomas. Sotomayor and Kagan did not participate for unspecified reasons of recusal, and Gorsuch did not participate because he was not on the court when the case was argued. 

Breyer has written a dissent, joined by Ginsburg, which he will read from at some length from the bench. It is the first dissent from the bench in a term in which some were predicting we might not see any at all. 

“The majority concludes that the plaintiffs cannot or may not be able to bring their suit, even if they prove their allegations and even if the defendants violated clearly established constitutional commands,” Breyer says. “Justice Ginsburg and I disagree. In our view, Bivens actions should continue to provide appropriate compensation for those deprived of important constitutional rights and in times of special national-security need.” 

Breyer goes on for a good 15 minutes. Alito mostly looks down or out toward the crowded courtroom, as do the other justices. 

“We understand the majority’s basic concern, namely that federal officials might hesitate in carrying out their security-related responsibilities if they fear future lawsuits for damages with an attendant risk of judicial second-guessing of decisions,” Breyer says. 

In time of war or national-security emergency, Bivens actions “may be particularly needed,” he adds. “History warns of the risk to liberty in times of national crisis.” He cites the Alien and Sedition Acts, the suppression of civil liberties during World War I, and the internment during World War II of “70,000 American citizens of Japanese origin.” 

While the majority points to suits for injunctive relief that may be brought to challenge government overreach, those are filed during national emergencies when the courts may be hesitant to interfere. “A damages action, however, is typically brought after the emergency is over, after emotions have cooled, and at a time when more factual information is available,” Breyer says. 

He closes by citing Lord Atkins, a British judge who wrote during World War II that “amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.” 

“The court should say the same here,” Breyer concludes.

You Probably Missed New Legislation To Protect People Making Online Complaints

Last year, Congress and the President made a small blow for freedom in the never ending struggle to protect open communications on the Internet from corporate censorship. I hadn't heard about it at the time, but it is a potentially valuable tool on cases involving online customer reviews and for people drafting business-customer contracts.

Consumer reviews are vitally important to our modern economy. Markets become stronger and more efficient when consumers share their marketplace experiences and guide other consumers toward the best vendors and away from poor ones.

Businesses recognize the importance of consumer reviews, and many businesses take numerous steps to manage how consumer reviews affect their public image. Unfortunately, in a misguided effort to control consumer reviews, some businesses have deployed contract provisions that ban or inhibit their consumers from reviewing them. I call those provisions “anti-review clauses.”

Anti-review clauses distort the marketplace benefits society gets from consumer reviews by suppressing peer feedback from prospective consumers, which in turn helps poor vendors stay in business and diminishes the returns that good vendors get from investments in quality (thus degrading their willingness to make those investments).

Recognizing the threats posed by anti-review clauses, Congress banned them in the Consumer Review Fairness Act of 2016 (the CRFA). As the House Report explains, the law seeks “to preserve the credibility and value of online consumer reviews by prohibiting non-disparagement clauses restricting negative, yet truthful, reviews of products and services by consumers.” By doing so, the CRFA helps advance the effective functioning of marketplaces. 

This essay helps readers understand the CRFA. Part I provides some background about anti-review clauses. Part II describes the new law and how it relates to existing law. Part III considers if the law goes far enough to protect consumer reviews. The article then has a short conclusion.

Eric Goldman, "Understanding the Consumer Review Fairness Act of 2016" Michigan Telecommunications and Technology Law Review, Forthcoming; Santa Clara Univ. Legal Studies Research Paper No. 2-17 (February 2017).

The bill is Consumer Review Fairness Act of 2016, H.R. 5111, 114th Congress (2015-2016), which has just two sections. Section 1 is the short title, and the balance of the act is in Section 2. It has apparently not yet been assigned a codified United States Code section number.

It was enacted on December 14, 2016 as Public Law 114-258.

Back Page Criminal Charges Dismissed

California brought criminal pimping charges against the owners of the online website "Back Page" because many of the advertisements on the site are advertisements for the sexual services of victims of human trafficking. 

The charges were brought and the CEO was arrested on October 6, 2016. Two co-defendants who were also executive in the company were also arrested.  All three men were then released on bail after spending four days in jail over the prosecution's objections. Their lawyer then filed a motion asking that the charges be dismissed that was fully briefed.

A preliminary ruling dismissing the charges was made on November 16, 2016. And a week ago the charges were dismissed in a final ruling, because federal law related to user provided content on websites provided the defendants with immunity from liability, just as the California prosecutor bringing the case had stated it did in public back in 2013.

I did not see any of this, other than the initial arrests, reported in the news.

Eric Goldman Clearly Received An Elite Kindergarten Experience

“The California appeals court said Yelp had no standing to protest an injunction against it,” [Law Professor Eric] Goldman said. “That contradicts basic due process that we learned in kindergarten. Yelp was ordered to do something without ever having a chance to tell the court its side of the story.”

From the San Fransisco Chronicle.

Eric Goldman is the leading scholar of reputation law in the digital age and his blog is in the sidebar at this blog.

Perhaps he gained such an esteemed position because of the excellent education he received in kindergarten.  I, in contrast, was trying and failing to learn how to color between the lines, and learning the alphabet and how to count to ten. But, some people, like the nine year old starting college this year, are more precocious than I was.

Perhaps the federal government can hire him as a witness for the government in its immigration cases where it has argued that young children are capable of representing themselves in immigration court without offending due process considerations. (I believe that a later decision in the case found against the government, although only on a preliminary matter like class action certification.)

The Merits

In all seriousness, the issue presented is whether Yelp has standing to contest a finding that a customer review posted by a user is defamatory in a proceeding to have an injunction put in place to order Yelp to remove it, when a default judgment against the user who posted the review was obtained by a business which claims to have been defamed by the review.

Generally speaking, default judgments cannot be used as proof in another case against anyone other than the person against whom they were entered (and not always then) under the doctrines of collateral estoppel and res judicata. So, Yelp would not even have to prove that the court entering the judgment had jurisdiction to enter the judgment (which mostly boils down to whether there was valid service of process on the user who may or may not have been accurately identified by the business).

UPDATE September 22, 2016: This majority rule of law, however, is apparently not the law in the State of California.  The California Court of Appeals states in a footnote to its opinion that:

A “‘“default judgment conclusively establishes, between the parties so far as subsequent proceedings on a different cause of action are concerned, the truth of all material allegations contained in the complaint in the first action, and every fact necessary to uphold the default judgment.” ’ [Citations.]” (Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 149.)

It isn't entirely clear if this language means that a default judgment as to one theory in one lawsuit against a defendant also applies with respect to a different theory in the same lawsuit against the defendant (a majority rule), or if facts admitted by default in one lawsuit can also be held against that defendant in a second lawsuit (a minority rule). However, it appears that only one lawsuit was filed in this case.

Even on its face, however, this rule of law should only bind the defaulting defendant and not someone who was not joined to that lawsuit and did not default.

END UPDATE.

If Yelp has no legal interest in the reviews posted by its users, on the theory that the users were the sole and exclusive owners of the reviews, it doesn't have standing to fight the decision. 

But, that characterization of the interest that Yelp has in reviews posted and aggregated and evaluated by it at its website is dubious. Indeed, the contractual relationship set forth in the Yelp terms of service, in all likelihood, expressly grants Yelp rights in the reviews that are posted by users. 

So, Yelp ought to be entitled to fight the claim that the review was defamatory on the merits before an injunction taking it down can be ordered, and the California Supreme Court will have to decide if that is the case.

UPDATE September 22, 2016:

Eric Goldman's lengthy post on the case is here.  An update is here.  The California Supreme Court unanimously voted to grant certiorari on September 21, 2016.

Transmission of the record, briefing, and oral arguments are likely to follow an ultimate ruling on the merits a year or more in the future.

It also isn't clear what is going on with defaulting defendant Ava Bird, who is being ruthlessly punished for writing a few short negative Yelp reviews. Should she voluntarily consent to remove the review perhaps in a settlement that reduces the money judgment against her, or is forced to do so under threat of contempt of court, or brings her own successful motion to vacate the judgment on some grounds, Yelp's claim could be mooted.  If this happens, it isn't clear if that would leave the bad precedent of the California Court of Appeals case in place, if that opinion would be vacated, or if the California Supreme Court would continue to render an opinion on the grounds that the issue might otherwise escape review in almost every case.

Finally, it is not at all obvious that the Plaintiff and former attorney of the defaulting defendant has complied with all of her ethical duties as an attorney by pursuing this course of action. If not, a grievance might be filed that might give rise to additional proceedings.

A few aspects are notable:

* The case involved a client complaining about an attorney.

* The complaint was served by "substitute service" rather than by personally delivering it to the defendant.

* Yelp was not named as a party or joined in the action, so it had no notice of the suit at the time that default judgment was entered.

* An ex parte "prove up hearing" was scheduled and held.  It isn't clear if any notice was delivered to the defaulting defendant or received by the defaulting defendant, but the defaulting defendant, at a minimum did not show up at the "prove up" hearing.

* The plaintiff filed court documents filed the court in anticipation of the "prove up" hearing, but not provided to Yelp which also was given no notice of the hearing, there (emphasis added):

In support of its request for injunctive relief, Hassell argued that “once the trier of fact has determined [Bird] made defamatory statements,” the court would have authority to issue an injunction, and that if the same showing could be made at a prove-up hearing, a comparable injunction would be proper. Hassell reasoned that denying injunctive relief after a default prove-up hearing would mean a plaintiff can be forced to suffer defamatory harm so long as the defendant refuses to answer the complaint. Hassell requested that the injunction contain a provision requiring Yelp to remove the defamatory reviews in the event that Bird failed to do so, which was likely in light of her history of “flaunting” California’s court system.

* Yelp received no notice of the "prove up hearing" and did not attend it.

* Following the ex parte "prove up hearing" at which only the plaintiffs attended and of which no transcript is in the appellate record, a default money judgment for "general and special damages and costs" of $557,918.75 was entered, but no punitive damages were entered. This is a pretty stunning award for someone who merely posted a few comments that were allegedly false in a Yelp review online.

* The default judgment also ordered the defaulting party to remove the complaint from Yelp's site.  The third paragraph is the "removal order" directed at Yelp:

“Plaintiffs’ Request for Injunctive Relief is Granted. Defendant AVA BIRD is ordered to remove each and every defamatory review published or caused to be published by her about plaintiffs HASSELL LAW GROUP and DAWN HASSELL from [Y]elp.com and from anywhere else they appear on the internet within 5 business days of the date of the court’s order. 

“Defendant AVA BIRD, her agents, officers, employees or representatives, or anyone acting on her behalf, are further enjoined from publishing or causing to be published any written reviews, commentary, or descriptions of DAWN HASSELL or the HASSELL LAW GROUP on Yelp.com or any other internet location or website. 

“Yelp.com is ordered to remove all reviews posted by AVA BIRD under user names ‘Birdzeye B.’ and ‘J.D.’ attached hereto as Exhibit A and any subsequent comments of these reviewers within 7 business days of the date of the court’s order."

* After judgment was entered, "Hassell served Bird with notice of entry of judgment. Bird did not appeal, and the judgment became final on March 16, 2014." The judgment was delivered to Yelp the same day that the judgment was served upon Bird (the opinion does not reveal the form of the service).

* Roughly two weeks after the judgment was served and before it was final, the Plaintiff served a demand letter upon the registered agent for Yelp.  Yelp responded with a letter to the Plaintiff setting forth its legal position that it was not bound by the order less than a week after receiving the demand letter.

* Yelp allows users to unilaterally remove their own complaints.

* It isn't obvious at first glance that this injunctive relief order was ever served upon the defaulting defendant which is necessary to give the Court authority to sanction the defendant for violating the injunction. The defamation plaintiff could have served the injunction on the defaulting defendant and then held the defaulting defendant in contempt of court if the defaulting defendant did not comply. But, if the defamation plaintiff had tried to compel the defaulting defendant to remove the complaint from the website, the defendant might have made an effort to set aside the default judgment on multiple grounds pursuant to the California equivalent of F.R.C.P. 60 (e.g. bad service of process, excusable neglect, misidentification of party complaining to Yelp).

* There is no indication in the record that the defamation plaintiff to action to compel the defaulting defendant to take action.

* Therefore, after the order was entered and served, Yelp sought to vacate the order, but was not allowed to dispute the merits of the defamation claim, obtained by default.

* The Court of Appeals concludes in the face of case law that arguably says otherwise, that Yelp was bound by the same deadline for attempting to set aside a judgment in the case that applied to the defaulting defendant, even though it was not a party to the case, and that its motion to vacate the order under the court rules (which are statutory in California) was untimely.  But, the Court held that it was still allowed to file a motion of a type not specified in the court rules.

* The California Court of Appeals decision is here.  It basic conclusions are as follows:

(1) Yelp is not “aggrieved” by the defamation judgment entered against Bird, but it is “aggrieved” 1 Generally, we will refer to respondents collectively, using the singular, gender neutral pronoun form where appropriate. 2 by the removal order; 

(2) Yelp’s trial court motion to vacate was not cognizable under Code of Civil Procedure section 6632; 

(3) Yelp has standing to challenge the validity of the removal order as an “aggrieved party,” having brought a nonstatutory motion to vacate that order; 

(4) Yelp’s due process rights were not violated because of its lack of prior notice and a hearing on the removal order request; 

(5) the removal order does not violate Yelp’s First Amendment rights to the extent that it requires Yelp to remove Bird’s defamatory reviews; 

(6) to the extent it purports to cover statements other than Bird’s defamatory reviews, the removal order is an overbroad unconstitutional prior restraint on speech; and 

(7) Yelp’s immunity from suit under the Communications Decency Act of 1996 (the CDA), 47 United States Code section 230, does not extend to the removal order.

* In the big picture, one of the real problems is entering a compulsory final injunction against someone who was not a party to the litigation. Generally, only parties to a lawsuit are bound by its decision. There are a couple of exceptions to that idea, but they involve their own due process protections.

For example, in the case of a garnishment for a money judgment, the garnishee can respond that the money allegedly owed by it to the judgment debtor isn't actually owed, but it can't dispute that the judgment debtor owes money to the judgment creditor.  The garnishee is also generally required to give notice of the garnishment to the judgment debtor, potentially causing the judgment debtor to seek to set aside the default judgment.

Injunctions directed at a party to a lawsuit can also sometimes have a penumbra effect on some people who have notice of it, although this doctrine is relatively narrow.  For example, an officer of a defendant corporation who knows of an injunction entered against a defendant corporation might conceivably be subject to contempt of court for causing the defendant corporation to violate the injunction.  A trial court opinion on this subject stated that: "under California law, an injunction can be “applied to” a nonparty by virtue of its relationship to an enjoined party. (Citing Ross v. Superior Court (1977) 19 Cal.3d 899, 906 (Ross).)"

* The crux of the appellate ruling against it is as follows:

Yelp attempts to characterize the removal order as an injunction against Yelp. We do not accept that characterization. The judgment was entered solely against Bird, and the injunctive order was directed solely at Bird’s defamatory speech. 5 The removal order was limited to statements covered by that injunction, statements attributed to Bird which she had been ordered to remove. Thus, the removal order does not impose any independent restraint on Yelp’s autonomy. Under these circumstances, charactering the removal order as an injunction creates unnecessary confusion about the clear distinction between the removal order and the underlying injunction against Bird. For reasons already discussed, Yelp cannot bootstrap its collateral attack of an allegedly void 5 order into a substantive appeal of the default judgment itself. The question whether the trial court should have granted an injunction against Bird is outside the scope of this appeal.

In other words, the California Court of Appeals concludes that Yelp's attack on the order directed at it cannot attack the merits of the determination reached against the defaulting defendant that the statements were defamatory and that a judgment was proper.

Basically, the California Court of Appeals concludes that Yelp is the kind of non-party who can be bound by an injunction because of its relationship to the defaulting defendant, while Yelp disputes that this is the case.

Behind The Scenes Epic Battles For The Future Of Music

About a month ago, Pandora dropped its lyrics service within its music streaming service without publicly acknowledging the change anywhere except a backhanded update to a seven year old post on one of its blogs.

There has also been a fierce and largely unreported fight as Pandora has struck a deal with an outfit called MERLIN that licenses music from many independent music labels at a rate about half as rich as what major labels are paid under a Copyright Royalty Tribunal ruling.

While most forms of intellectual property licenses are governed purely by contractual agreements, the "little rights" in music (i.e. the right to play and cover music in formats like radio as opposed to the "big rights" to have music used in movies and TV shows) can be used unilaterally by radio stations and certain other radio station like entities like Pandora that stream music, if exchange for a royalty determined not be negotiation, but by the Copyright Royalty Tribunal, in what amounts to a legally authorized efficient breach of contract not allowed in other parts of copyright law.  (Efficient breach is when you intentionally breach a contract and pay damages because that is cheaper than performing the contract.)

The MERLIN deal is controversial because it involves "payola", i.e. playing a song more often for a monetary inducement, something that was banned in the radio world decades ago because it was considered a form of corruption in the music marketplace.

But, the MERLIN deal is also an effort to renegotiate the Copyright Royalty Tribunal rates for non-independent label music which is much more expensive, on the grounds that the MERLIN deal is a bona fide arms length deal between a willing seller and willing buyer that is a reference point for setting royalties when they are determined by the tribunal rather than negotiated.

There are other elements of the epic behind the scene battles.  Aereo, a company that tried to create free streaming of broadcast television was batted down in a U.S. Supreme Court fight, leading to its bankruptcy this week, but while Aereo lost the battle, it may have won the war, with the FCC formulating new rules to allow essentially the same services under an FCC regulatory framework with a Copyright Royalty Tribunal model.

The tribunal and related legislation drive the economics of all sorts of streaming media, satellite TV, cable TV, broadcast TV and essentially the entire electronic media world.

Maddeningly, however, in a world well companies like Pandora will only grudgingly and backhandedly acknowledge a sea change in their policies and won't publicly explain exactly why they did it, it is very hard to know what is going on in this demi-monde of media economics and law.

This is not the first time things like this have happened.  For example, a flourishing online world of fans who translated Japanese and Korean manga into English on a volunteer basis, largely in the absence of a commercially available alternative since the works were not being translated by the copyright owners, vanished, almost overnight a few years ago, without so much as a newspaper story in a mainstream American newspaper in a coordinated legal effort by manga publisher's lawyers.

Outside the area of media, the most similar case involves the reformulation of dishwashing soap for environmental reasons in an unannounced change that impacted hundreds of millions of people in their daily lives without their knowledge.

Efforts to make movies available online have been rather more resilient, and have been hurt more by legal alternatives like Netflix and Hulu and Amazon Prime, than by legal action, despite relentless efforts to shut down these operations.

Benjamin Hayempour Attempts Improper DMCA Takedown!

On December 14, 2013, I wrote a post at this blog entitled "Graduate Student Benjamin Hayempour Shows Pattern Of Plagiarism." This post identified eight different papers written by Hayempour, by citation, that contained strong evidence of plagiarism with a link to my source at Retraction Watch that analyzed this instances of alleged plagiarism which provided a factual basis for my own post. I also identified other facts about this case that corroborated my conclusion, such as his dealings with journals that have a poor reputation (supported by another link to a third party. And, of course, I included my own analysis of the situation. Later, I posted a comment to my own blog post identifying a post at a different blog, Neuroskeptic, that analyzed a ninth instance of alleged plagiarism by Hayempour.

These links, which provide a factual basis for my own post, insulate me from liability for defamation, because allegedly defamatory material concerning media defendants (which include bloggers) or matters of public interest (such as academic plagiarism) are not actionable unless they are not only untrue, but are made with reckless disregard for the truth. Reasonable reliance on third parties who have analyzed the allegedly plagiarized papers in depth in a manner that I concurred with (including one paper that was retracted) establishes a lack of recklessness with regard to the truth.

Not long after I made that post, Hayempour wrote me a number of e-mails alleging that I had defamed him. He did not at any point claim that the material was copyright infringing. His arguments in those posts that he acts did not constitute plagiarism were unconvincing. I responded by stating, in essence, that the facts spoke for themselves and that I would not take down or edit my post. I did make a correction regarding his current institutional affiliation which was clarified by his correspondence. I had originally, inaccurately claimed that he had another institutional affiliation based upon online materials about him that asserted that this was the case.

Today, Google took down that post pursuant to a DMCA complaint alleging a copyright violation (no doubt filed by Hayempour or someone acting on his behalf). They revert your post to draft form, put a notice at the top of your log in page, and send you an e-mail. The DMCA creates a safe harbor for entities such as Google in is role as the host of the Blogger service from copyright violation liability if it takes down allegedly offending post and gives a notice to the blogger whose post was taken down. There is a process for filing a counternotice to have the post reinstated because it is not a copyright violation which I utilized today. Under the DMCA process, the post must be reinstated upon receipt of a conternotice, unless a court action is filed with regard to my alleged copyright violation within 14 days.

Since there is no remotely viable basis for claiming a copyright violation in a post that contains no copied material, and which would be protected by fair use criticism provisions even if it did, I have no fear of litigation over this post. I am quite comfortable that I could prevail without ever having to appear in person in the California federal court venue designated by Google in its Complaint form.

A DMCA takedown is not authorized for an alleged instance of defamation.

Hayempour, in his ongoing pattern of misconduct, had to lie about his claim that he had a good faith basis to believe that there was a copyright violation in order to issue a DMCA takedown notice. Unlike Retraction Watch and Neuroskeptic, I didn't even quote from the allegedly plagiarized articles that he wrote.

So, again showing Hayempour has shown himself to be dishonest and unfit to be admitted to professional practice in his field. Of course, we already knew that from his nine documented instances of plagiarism and his dubious associations with shady journals, and from his abuse of the legal process when sending a cease and desist notice to Retraction Watch.

Graduate Student Benjamin Hayempour Shows Pattern Of Plagiarism

Benjamin Hayempour is apparently a graduate student in Oxford in radiation biology working towards a PhD and doing his best in a publish or perish academic climate to get ahead.  Unfortunately, it appears that he has engaged in serious academic misconduct while doing so. [Ed. Correction: based upon his e-mails to me, he appears to be a graduate student at the UC Berkeley Department of Engineering and UC San Francisco School of Medicine, despite indications from other online sources that he was at Oxford, perhaps a past affiliation.]

A paper that he was a co-author of from 2011 entitled “Neuroradiological advances detect abnormal neuroanatomy underlying neuropsychological impairments: the power of PET imaging,” was retracted because of "unexplained close similarity of some passages to parts of a previous publication" (i.e. possible plagiarism), and the blog Retraction Watch noted this fact in a blog post.  

Benjamin Hayempour alleges that he played only a minor almost clerical role in preparing the paper, yet, he is listed as the corresponding author for the paper and his co-author is the one who requested the retraction claiming that he was unaware of the plagiarism.

Hayempour hired inexperienced Los Angeles real estate lawyer Eyal Aharonov to write a cease and desist letter directing Retraction Watch to retract its truthful and factual coverage of the retraction notice or face a lawsuit for defamation (the legal basis for the threatened suit wasn't clear).  

This triggered the Streisand Effect, i.e. "the phenomenon whereby an attempt to hide, remove, or censor a piece of information has the unintended consequence of publicizing the information more widely."  After learning of the groundless legal threat, readers of Retraction Watch tried to determine if any of Benjamin Hayempour's other published work showed evidence of academic misconduct or deceit on his part.

The readers of Retraction Watch found a great deal when they dug around a little more into the situation and found a lot of troubling additional facts.

(1) According to one RW reader, On his linked in profile (no longer public or since edited) Benjamin Hayempour claimed that: 

Even though he just started as graduate student, he is editor-in-chief of a journal: “Journal of Nuclear Medicine and Radiation Therapy” and is on the editorial board of three other journals: Journal of Neurological Disorders 

The Journal of Alzheimer’s Disease & Parkinsonism 

Journal of Family Medicine and Medical Research.

All of which are published by OMICS Publishing Group, which has a reputation with another RW reader as something of a hybrid of a vanity publisher and diploma mill.  While this is not illegal, it is certainly unethical morally and reflects poorly on the integrity and honesty of anyone involved in the venture.  It manifests a clear intent to blatantly deceive third parties presented with these articles about the significance of these publications.

(2) RW Readers note in the comments to the posts linked above, very similar plagiarism problems in seven other papers listing Benjamin Hayempour as an author including:

* “Biological Imaging Instrumentation…” J Nucl Med Radiat Ther. 2013 Jul 20;4(3). doi:pii: 1000157

*  “Should Antidepressants be our Choice of Treatment?”

*  “The Controversy of Conventional Psychiatric Diagnostics”

*  “Clinical Medical Physics Methods in Radiotherapeutic Cancer Treatments”

*  "Brain Disorders: Evaluation by Radiological Techniques and Nuclear Medicine of the Primitive Neuropsychiatric Disorders."

* J Psychiatry Law. 2011 Winter; 39(4): 537–566.

* "Neuromolecular Imaging Instrumentation Demonstrating Dysfunctional Brain Function in Schizophrenic Patients" (2013)

Benjamin Hayempour, rather that admitting wrongdoing as he participates in the discussion tries to argue that he believes that the many instances cited (sometimes despite several long plagiarized passages in a single paper) that his conduct was considered acceptable academic practice when writing review papers.

Eight papers in just a few years with plagiarized passages, dubious claims of editorial roles in four diploma mill journals including an "editor-in-chief" claim, a refusal to acknowledge wrongdoing when presented squarely with black and white evidence of his misconduct, and a doubtful claim that the authors of the RW blog misquoted him despite support in contemporaneous notes of a conversation about what was said all point to an obvious conclusion.

I used to be a full time associate professor in a master's degree program at the for profit "College for Financial Planning" which developed the Certified Financial Planner designation, and later became a sister college of the for profit 'University of Phoenix" system.  Not a particularly prestigious post within academia, to be sure.  

But, even in that little outpost, I would have immediately assigned an "F" grade to any paper from a student that had instances of unattributed quotation from another source of the type illustrated by Benjamin Hayempour in all eight of the papers identified by RW or its readers, and would have expelled him from the program with a negative academic dishonesty reference if I ever saw that kind of behavior repeated even a single time.  The plagiarism examples present in those works are easy and clear cases of intentional academic misconduct, not gray areas.  Any college sophomore would be expected to know better, and Hayempour's academic credentials are from schools where knowledge that this is not acceptable academic conduct is widespread.

The fact that Benjamin Hayempour felt the need to hire a lawyer to try to cover up and intimidate people who were revealing Benjamin Hayempour's academic misconduct with threats of defamation lawsuits that have no substantial justification also tends to indicate an awareness on his part of just how damaging the truth would be to his reputation.

In my opinion, Benjamin Hayempour has engaged in a widespread, intentional pattern and practice of academic misconduct and plagiarism that no reasonable graduate student at Oxford University could have possibly been unaware was improper, and certainly conduct that no one who was legitimately Editor-in-Chief of an academic journal could possibly believe was acceptable.  He did so, apparently, for the purpose of inflating is academic reputation and professional credentials.  And, in my opinion based upon this evidence, deceit is so second nature to him that he may very well be irredeemably some sort of psychopath, or just a habitual liar and con man. 

He claims ignorance, a desire to fix his past mistakes, and so on.  But, there are simply too many implausible statements in his reactions to the accusations against him, and too many blatant instances of conduct that couldn't be anything other than intentional, to make his statements believable.

The only just sanction for this kind of widespread academic misconduct, in my opinion, would be to expel him from his program at Oxford with a bad recommendation reflected on his transcript, together with a termination of any scholarships or stipends, to retract all eight of these papers and to investigate all of his other published work for similar misconduct, to revoke any professional certifications that he has obtained to date, and to advise the appropriate officials at the National Institute of Health of the academic misconduct that he engaged in when doing work funded by one of their grants.

No responsible educational institution, professional regulatory body, or employer could continue to keep him on in any capacity where integrity or honesty was required.

Neuroskeptic and others in the blogsphere have similarly noted Benjamin Hayempour's academic misconduct which otherwise might have gone unnoticed.

So, there you have the story of Benjamin Hayempour's pattern of plagiarism.

Footnote: Eyal Aharonov, an incompetent rookie lawyer

Of course, it is also the story of his lawyer Eyal Aharonov's gross incompetence and professional malpractice in handling the situation.  Aharonov's bad advice and ill drafted cease and desist letter has made the situation a hundreds or thousands of times more damaging to Benjamin Hayenpour's reputation than it otherwise would have been.  Aharonov's actions have probable turned a minor hiccup in Hayenpour's career into a situation that will probably destroying Benjamin Hayenpour's career prospects for life, deny him any hope of ever becoming a doctor or a professor, and thus may cost him millions of dollars in lost income over the decades.  Aharonov's bad judgment may also expose Benjamin Hayenpour to a substantial risk of sanctions and anti-SLAPP law penalties such as the attorneys' fees incurred by people who he sues (if he does).

As a lawyer, one of your first priorities had to be to act in a way that does not call more attention to the myriad instances of misconduct that your client has committed.

Aharonov is slightly more sympathetic, as he has apparently been dumped into self-employment as a lawyer more or less right after graduating from a second rate law school (Pepperdine), and has only had a couple of years of experience without the kind of post-law school mentoring necessary to develop good judgment.  But, on the other hand, I was in more or less the same boat when I finished law school and somehow managed to avoid harming any of my clients so seriously with my own incompetence.

Still, Aharonov's mistakes were merely a product of incompetence and don't reflect all that badly on his integrity.  Most junior lawyers, with enough experience and guidance can learn not to repeat catastrophic mistakes like the one he made in this case.  And, he is probably too broke to be worth suing for malpractice at this point.  If you must screw up, it is better to screw up when you are poor, than to screw up once you have accumulated substantial wealth.

Meanwhile, I have no doubt whatsoever that the Retraction Watch blog will be fully vindicated in this dispute.

UPDATE 3/27/2014:  This post was the subject of an improper DMCA takedown notice.  More than fourteen days have passed since I was notified that a DMCA counterclaim was served and no federal lawsuit has been filed regarding this post in the appropriate forum.  Therefore, I am republishing it.  Further discussion of the takedown notice drama and comments re further plagarism by Hayepour can be found here.

UPDATE 4/06/14:  As noted in the related post, I got the official notice of the all clear in the wake of the takedown notice and my counterclaim only on April 4, 2014, more than two months after the original take down notice, although I had already restored it a week earlier, once fourteen days from acknowledgement of receipt of my counterclaim passed without incident.  Thus, the takedown and reinstatement process actually takes about nine weeks, rather than the two weeks it should take in theory, for a blogger post takedown.  Since then, there have been twists to the underlying story, in addition to the metastory told at the companion post.  The following comment was made anonymously at the metastory post and is included her because it relates to the original post:

"BTW, I though you might be interested to learn that Ayden Jacob (aka Hayempour) is still plagiarizing.

(also posted to RetractionWatch)

---------
Hayempour (now going by Ayden Jacob) is *STILL PLAGIARIZING*. I admit to being stunned, but there we go...

Ayden's new website contains the following two sentences:

"Using patented nerve monitoring technology, the surgeon gains lateral (side) access to the spinal column, avoiding any major nerves in the area between the incision and the column. The XLIF procedure does not require an anterior (front) or posterior (back) exposure, and thereby does not present the same risks of vascular and/or neural injury as traditional approaches."

(from http://www.aydenjacobmedicine.com/orthopedic-surgery.html , archived here: http://archive.is/c0lYJ )

They are copied, word-for-word, from http://www.nuvasive.com/patient-solutions/nuvasive-surgical-solutions/extreme-lateral-interbody-fusion/ (archived here: http://archive.is/6fiyx ).

There is no citation, no quotation marks, not even a link to the site he stole from.

He learned *nothing*.

3/19/2014 3:27 PM "

Benjamin Hayempour, has identified himself as "Ben Jacob" in some of his correspondence to me. So both "Ben Jacob" and "Ayden Jacob" appear to be aliases of Benjamin Hayempour.