Are Teeth a Dangerous weapon?

on April 12, 2011

Hi and welcome to Legal Musings!  I try to talk a bit about laws dealing with writing and copyrights…but not always.  Today I’m still behind from attending the RT Convention (more posts to follow) so here’s my legal analysis.

Teeth, at least in Oregon, are not considered a dangerous weapon.  Who knew?  More importantly, why does it matter?  Well, assault with a dangerous weapon is so much worse than just plain assault…more jail time. 

A couple of drunk guys got into a fight in a Oregon bar…and one bit the ear of the other.  The biter was charged and convicted for first degree assault, and the lower court determined his teeth were dangerous weapons.  (No, he’s not a vampire).  The guy got 90 months in jail.  The appellate court disagreed, stating that teeth are not external to the human body, so they can’t be a dangerous weapon.  State v. Kuperus, WL 1005364 (2011)

This brings up the question:  what if someone uses dentures?  I mean, those are external to the human body, so…I guess we’ll just have to wait for that case to appear in Oregon.    (Thanks to Rita for sending me the link to the case!)

So…what else has been determined not to be a dangerous weapon?

THE OCEAN:  Yeah.  This guy named Shea invited two women onto his boat off the Massachusetts shore and when they wouldn’t get naked with him, he threw them overboard and drove away.  He was charged with a whole bunch of crimes, including assault with a dangerous weapon (the ocean).  The Massachusetts Court held that the ocean couldn’t be a dangerous weapon because the defendant had no control over it.  Though Shea still ended up in jail for the other crimes.  Commonwealth v. Shea, 38 Mass.App.Ct. 7 (1995).

You know what have been found to be dangerous weapons?  (Depending on jurisdiction).  Mace, Bb guns, chairs, wrenches, concrete…

CYA Disclaimer:  This is not legal advice.  If you want to bite someone, I wouldn’t, but it’s up to you.  Think of the germs.  Yuck.  If they bite you, I still wouldn’t bite them back.  But again, this is not legal advice.  Don’t take this as legal advice.  It is not intended as legal advice.  If you bite someone, you’re on your own.

So this Guy named Parker sued Google…

on April 5, 2011

Welcome to Legal Musings where I try to blog about something going on in the legal world.  Often the topic will include writing, copyright..etc.  Sometimes it won’t.

There’s an interesting case where a guy named Parker sued Google. Parker lost at the federal district court level, and the Third Circuit Appellate Court affirmed.  Here’s the complete cite:  Parker v Google, Inc., 242 Fed.App, 833 (CA3 2007).  Also, the U.S. Supreme Court declined to hear the case, so this is the end for it.

Basically, Parker wrote the book, 29 reasons To Not Be a Nice Guy.  Somebody posted #6 on one of Google’s global system of online bulletin boards.  (The archive contains more than 845 million messages).  So, Parker sued Google for this, also claiming that Google provided users with links to websites that portrayed him negatively when users utilized Google’s Internet search engine.

The court held in favor of Google, “Parker’s allegations failed to assert any volitional conduct on the part of Google.”  Parker at 837.  Basically, since Google didn’t post the item, it was shielded from liability for the copyright infringement.  In fact, the court compared Google to a company providing copiers for use (and cited the Fourth Circuit.) “A copy machine owner who makes the machine available to the public to use for copying is not, without more, strictly liable under [the Copyright Act] for illegal copying by a customer.” 373 F.3d at 550.

So, Parker’s second cause of action was for vicarious liability…meaning that Google was liable because it allowed the posting.  Parker lost because “he failed to allege that Google had the requisite knowledge of a third-party’s infringing activity.”  Parker at 838.

So this opens up the question…what if Google had known?  That type of case has to be coming down the pipeline, and when I find it, I’ll post all about it.

Parker also got his butt kicked on his claims for invasion of privacy, defamation and negligence because Google has immunity under the Communications Decency Act (CDA).  The CDA is a federal law I’ll dig into sometime in the future.  (Some of it has been struck down).  Not today.  For today, just know that the CDA shields companies like Google if all the requirements are met.

Also, the court declined to award attorney fees to Google (often they’re awarded to the winner) because the internet is new law and nobody quite knows the answers regarding it yet.

Today, I’m at the RT Booklovers Convention in LA.  If you’re around, stop by.  Here’s the website:  RT Booklovers Convention.

CYA Disclaimer:  This is not legal advice.  You’re a moron if you take this as legal advice.  If you need legal advice, find a lawyer.  Yes, I’m a lawyer.  But I’m not your lawyer.  I’m providing my analysis of interesting stuff on the internet.  I am not representing you or giving you legal advice.  As much as I’d like to.  🙂 

Is Online Piracy Really Stealing?

on March 29, 2011

Hell yes, it’s stealing.  Seriously. 

Welcome to Legal Musings…where I try to find a blog niche and talk about the law.  Yes, I’m a lawyer.  Yes, I hope to include a lot of legal analysis dealing with being an author.  But I might digress into other legal areas…because there’s some weird stuff going on in the law.

So, what is Senate Bill 3804, the Combating Online Infringement and Counterfeits Act…and where is it today?  Well, it’s a Bill that was introduced into the Senate by Sen. Leahy from Vermont that allows the government to go after pirates.  By pirates, I don’t mean Captain Hook.  I mean the blood sucking, evil, narcissistic people thumbing their noses at karma and stealing books on the internet.  Dante has a brand new, special level of hell for those folks.

But, I digress.  About the current status of the law…The Bill spent some time in committee, and needs to be re-introduced. 

On February 16, 2011, the Senate Judiciary Committee held hearings and Scott Turow, one of my favorite authors and the president of the Author’s Guild, gave testimony. 

First, Senator Leahy testified, “I am confident that we will pass legislation to target rogue websites this year. I want to hear from all sides as we move forward, but I refuse to accept that addressing the problem is too difficult because people who want to steal will always find a way. That is like saying that we should not prosecute drug crimes or child pornography because bad people will find a way to do bad things anyway. I am a former prosecutor, and that line of argument is unacceptable.”  See Judiciary transcript for full text.

Scott Turow testified and gave some amazing examples of online piracy.  “One is tempted to call it a vast underground economy, but there’s nothing underground about it: it operates in plain sight…Money clearly suffuses the system, paying for countless servers, vast amounts of online bandwidth, and specialized services that speed and cloak the transmission of stolen creative work.” 

Turow then gave specific examples of the most prolific of pirates, stating that it was time to make piracy not so secret, calling for online providers to register an agent for service of process (just like any business in the US has to do).  He had several recommendations…read the full text here.

Is anyone besides the pirates against the Bill?  YES.  There are groups up in arms about the former text of the Bill, claiming it would allow the U.S. Government to shut down every site from YouTube to Yahoo. So the text may have been over-broad.  I think that’s why it went back to committee and they’re holding hearings now.  To clarify the text.

Finally, Nora Roberts, the Queen of Romance, submitted a letter to the Judiciary Committee in support of the Act.  She asked, “If piracy continues to devastate a writer’s income, to erode the ability of the publishers to make the profit necessary to bring those books to the public, where will the next generation of storytellers come from?”  The woman can write!  The full text of her letter is up on the RWA website. 

So…the current status of the law is that they’re working on the law.  I’ll try to keep you updated.

I Kill People in Books

on March 21, 2011

I kill people in books.  It’s true.  The lady who cuts me off for a parking spot, the bat-sh*t crazy chick who yells at me in a bar…even the lady at the post office who growls at my many packages.  They die.  And hard.

One of the most cathartic things to do is work out your demons via writing.  Of course, you often end up passing emails to your critique partner titled, “Best place to bury a dead body,” or “Do you think I could snap a neck with a stapler?”  In the name of research, of course.  Other fun notes we pass back and forth: 

  • Does the human body really bend that way?
  • I don’t think a man would really call that “Tonto.”
  • Your heroine already fell off the bed – there’s no way he can reach her now.
  • I think the grave should be deeper.
  • I’m not sure they’d eat his liver first.

So, one of the many fun things about being a writer is that you can talk pretty much about anything.  In one of my works in progress, my heroine stumbles upon a marijuana growing farm.  Well, my husband was using my laptop and went to ‘favorites’ for our bank’s URL.

He finished banking and asked, “Why do you have the ‘hydroponic marijuana guide’ listed as a favorite?”  My answer:  “So I wouldn’t forget the name.”  What’s cool is that he nodded, because that made perfect sense to him.  He lives with a writer.