Graydon Head

Blog: Jack "Out of the Box"

Welcome to Jack "Out of the Box." This is a spin-off of the Firm's InfoLaw Newsletter, much like "CSI: Miami" is a spin-off from "CSI." Except without all the corpses. I plan to update the blog at least weekly. Really. It's not like when I used to promise my mom to clean my room once a week. I'm more mature now. And of course, the InfoLaw Newsletter will continue every two weeks. The blog will feature shorter pieces, and ideally, reader feedback. Should be fun. Oh yeah, and informative.


    Jun 24, 2016

    Led Zeppelin won their well- publicized court case this week over the origins of their massive hit “Stairway to Heaven.”  The estate of the Randy Wolfe, the lead singer and songwriter for the band Spirit brought the copyright infringement suit, claiming Robert Plant and Jimmy Page stole the opening riff from a Spirit song called “Taurus.”  I’m not sure how many of the jurors made out during a slow dance to “Stairway” and to what extent that influenced their verdict, but for now – at least pending appeal – it’s a win for Led Zeppelin. 


    The Salon post is an interesting take.  The author – Scott Timberg -- notes that Page and Plant had a bit of a reputation for “borrowing” other people’s music.  But on balance, Timberg points out that the verdict is good for the creative process.  The simple truth is that there are only so many notes and so many chords.  Here’s a great illustration

    Sometimes cases are more significant for what they might have done then what they did.  In this case, a jury essentially concluded that the two songs weren’t similar enough to justify infringement.  That’s a big deal for the parties, but probably doesn’t have too much precedential value. 


    Had the jury gone the other way, however, the damages would have been astronomical.  And given the fact that lots of songs use similar chord progressions, that may have incentivized lots of struggling artists and their struggling lawyers.  Talk about wealth distribution.  In this case the money would have flowed from rock stars to lawyers.  I wonder if the groupies would have followed.    

    Go comment!
  • The "P" is for Propaganda

    Jun 23, 2016
    If you’ve driven on an Ohio highway, you’ve probably seen police cars with the letters “OSHP” emblazoned on the side.  And it’s likely you assume those letters stand for “Ohio State Highway Patrol.”   I’m not so sure.  I am increasingly coming to the conclusion that the “P” stands for “Propaganda.”   

    Merriam-Webster defines “propaganda” as  “ideas or statements that are often false or exaggerated and that are spread in order to help a cause, a political leader, a government, etc.”  This is accurate, but I think more generally, propaganda happens whenever the government controls the message.  And I suppose an organization of police is bound to be, let’s say “control oriented.”  

    This thought comes to mind as I think about last week’s argument in the Ohio Supreme Court about whether footage from the Ohio Highway Patrol dash board camera is a public record. The Highway Patrol took the position in that case that the footage of a vehicle pursuit (“car chase” in plain English) is an “investigatory record,” the release of which would disclose “investigatory work product.”  Did I mention the footage is the film of one car chasing another car? Perhaps NASCAR should get in on this and start calling it the “Daytona 500 Investigation.”    Just a thought. And I guess whoever is running behind Usain Bolt in Rio later this summer will be conducting an “investigation” as well.  

    And while the Highway Patrol’s position is pretty ludicrous on its face, it’s worse when considered in light of the Patrol’s PR activities.  I noticed this nugget the other day on the Highway Patrol’s Web site:  

    Troopers Discover Heroin, Cocaine in Scioto County Traffic Stop

    Troopers stopped a 2015 Chrysler 200, with Pennsylvania registration, for a speed violation on U.S. 23 southbound, near milepost 8, in Scioto County at 8:17 p.m., on June 11. Criminal indicators were observed and a Patrol drug-sniffing canine alerted to the vehicle. A probable cause search revealed a small amount of cocaine residue on the front seat. A search of the passenger revealed approximately 157 grams of heroin in his shoes. After interviewing the suspect, he admitted to having another 40 grams of cocaine, eight grams of heroin, and a semi-automatic weapon at his residence. The contraband has a street value of $28,752. The suspect, Robert L. Turner, 34, of Portsmouth, Ohio was incarcerated in the Scioto County Jail and charge with possession of heroin and trafficking in drugs, both first-degree felonies.        

    I am trying to figure out why the Highway Patrol gives such a detailed description of this incident on its Web site, but won’t produce the video that would disclose the same events.  Why can we read the book, but not see the movie?  Footage would allow the public to see the demeanor of the police and the suspect, whether the police needed to use any force and whether the level of force used appropriate. But it wouldn’t disclose any confidential information or other “investigatory work product.”  What this does illustrate, though, is how the Patrol can use the law to control the message.  The public sees what the patrol wants it to see, if and when the Patrol wants the public to see it.   

    And the same applies to video of vehicle pursuits.  The Patrol has its own YouTube channel.  And guess what’s on it?  If you guessed dash board camera footage of vehicle pursuits you would be correct.  Here’s another one.   So on those chases that the Patrol thinks are cool go to YouTube.  But if you want footage that the Patrol doesn’t want to share, you’re out of luck.   

    That's not transparency - that's propaganda.
    Go comment!
  • Police Camera Footage

    Jun 16, 2016
    I had the unusual experience this week of arguing two cases before the Ohio Supreme Court back to back.  The cases involved the public record status of police camera. The first case involved an Ohio Highway Patrol dash board camera that captured the pursuit and apprehension of a motorist who was ultimately charged with a number of offenses ranging from a missing license plate to possessing an illegal firearm.  

    The second case involved a missing license plate as well.  In that case, a University of Cincinnati Police Officer, wearing a body camera, pulled a driver over because the car was missing a license plate.  That encounter escalated and the police officer shot and killed the driver. 

    The issue before the court was whether the footage in both cases could be classified as a “Confidential Law Enforcement Investigatory Record.”  If so, the police and prosecutors would have no obligation to provide a copy of the footage to the public or the press.  

    In a 2001 case called State ex rel Beacon Journal v. Maurer, the Ohio Supreme Court decided that an initial incident report detailing the initial interaction between the police and public related to some occurrence is not an investigatory record.  The Court ordered the report – which contained detailed written narratives provided by four different police officers -- produced upon request, without redaction. 

    Another way of phrasing the question before the court was whether the Maurer decision would apply to the footage in the two cases.  To the extent the reports set forth the events from that interaction, they are no different from the footage.  One reflects the observations of police on the scene; the other reflects the observations captured by a camera. 

    But to the extent the question is phrased in that fashion, a related question is: what is the meaning of Maurer?  And why did the court find that the record of the initial interaction between the police and the public be available for immediate and unedited public consumption? 

    The answer is that the manner in which the police conduct the initial interaction with the public speaks volumes about the police’s relationship with the citizenry and dictates the level of respect citizens will have for the police.  Are police courteous and professional in their dealings with the public or dismissive and confrontational? Do police mete out equal treatment in those encounters?  Are certain citizens afforded better treatment?  Do police use excessive force or take unnecessary risks in their interactions with the public?  Footage of those interactions will answer all of those questions.

    And those initial interactions – even the ones at issue in the cases before the court – are not inherently criminal investigations.  A car proceeding down the street with a missing license plate could be doing so for any number of reasons – but that fact alone does not make the driver a criminal. And so the initial stop – which occurs to initially determine the existing facts – did the plate fall off in route; is it in the car; is there some honest mistake – does not constitute a criminal investigation.

    If in the course of the initial interaction the facts suggest a further investigation is needed, then those subsequent steps may fall under CLEIR, but the initial interaction and any record of it does not. 

    That makes perfect sense.  Because if the entire interaction is “investigatory” the footage may never see the light of day.  And it doesn’t take an extraordinary imagination to think of the potential mischief that could result from this scenario.  Imagine an Ohio town that is less than friendly to outsiders, especially outsiders with dark skin.  Now imagine the police in that town routinely pull drivers of color over and hassle them.  The message is clear: “you’re not welcome here.”  Of course, if the police prepare incident reports of these interactions, there would be no mention of hassling, and no indication of the driver’s race.  All we’d see is a sanitized account in scrubbed language.  But if the police in those encounters were wearing body cameras, we’d see what the drivers looked like.  We’d hear the officer’s tone.  We’d observe body language. And as a result, a much more accurate picture would emerge. 

    But that accurate picture wouldn’t necessarily emerge if the footage were deemed “investigatory.”  The police could hold it as long as they felt like it.  In the example I mentioned above, the driver would be an “uncharged suspect” and that would allow the footage (and all the footage like it) to be withheld forever.   Which begs the question, how would the press and the public discover and expose the wrongdoing?

    And the concern is hardly hypothetical.  We saw last year in Chicago the extreme lengths to which the city and its mayor went to withhold the footage of the Laquan McDonald shooting.  The footage conveniently remained under wraps until after the mayoral election.  Few people consider that a coincidence.  And it illustrates how the “investigatory record” exception can be misused to hide truth.

    When I argued the cases this week, a camera recorded the argument and live streamed it to the World Wide Web.  That footage is available in the Ohio Supreme Court’s Web site for anyone to see.  And I have no problem with that.  I am proud of the work I do and happy to represent my clients to the best of my ability.  The world is welcome to watch.  And I suspect 99.9% of police – the ones who do their job professionally and courteously – feel the same way about video capturing their performance.  The rank and file police – who are unburdened by political ambition – aren’t the ones working to shut out the public.  That effort comes from a higher pay grade.

    Disclosure leads to closure.  Non-disclosure leads to chaos.  In the cities where riots followed police involved deaths – Ferguson and Baltimore – there was no video of the precipitating incident.  In the cities where police involved deaths did not lead to riots – Cleveland, New York and North Charleston, South Carolina – the public was able to see the video of the event.  Neither of those examples is a coincidence. 

    The Ohio Supreme Court got it right in 2001 with the Maurer decision.  The Court has a chance now to reiterate the point – the record of the initial interaction between the police and the public is not an investigation.  And that includes the video record. 
    Go comment!
  • Text Message May Mean Big Score For Plaintiff

    Jun 09, 2016

    Elaine Bonin recently filed a class action suit in federal court in Wisconsin alleging that CBS Radio violated the Telephone Consumer Privacy Act by sending her text messages with game scores.  She claims she and a class of similarly situated plaintiffs never consented to the messages.  Give that the TCPA provides for statutory damages of up to $1500 per violation, and given her contention that the entire class is entitled to that relief, the score here could be, to borrow a phrase from a presidential candidate “huge.”

     According to the complaint, the TCPA "generally prohibits autodialed calls to wireless phones," but "provides an exception for autodialed and prerecorded message calls...made with the prior express consent of the called party."  The complaint further notes that “on February 15, 2012, the FCC released a Declaratory Ruling wherein it clarified that a party must obtain prior express written consent from the recipient prior to making automated telemarketing calls to the recipient’s cellular telephone.”

     Ms. Bonin purchased a prepaid wireless phone earlier this year.  The prepaid phone came with a set allotment of minutes for calls and text messages.  Shortly after she got the phone, she received a test message from a number belonging to Chicago radio station 670 “The Score.”  That message contained the score of the Bears Lions football game. Apparently the station sent her several additional messages.  In her complaint, Ms. Bonin states in no uncertain terms:  “[a]t no time did Bonin provide her prior express written consent, or any other form of consent, to CBS or 670 The Score, or to any of its affiliates, agents or subsidiaries, to receive any text messages, prerecorded, or automated calls/texts to her TracFone cellular telephone.”

     In her complaint, Ms. Bonin notes that each text message use up .03 minutes of her allotment.  That may sound miniscule, but it could be a critical piece of the case.  In any civil action, and in any class action, the court has to consider the question of “standing.”  And a plaintiff must establish that he or she suffered some actual “injury in fact” to have “standing” to bring a lawsuit.  A plaintiff who can only establish statutory damages may not have standing.  Just because the TCPA provides for a statutory remedy, that does not mean the plaintiff suffered any injury.  That is what makes those .03 minutes so important.

     The complaint is saying that The Score effectively took from Ms. Bonin phone time she paid for.  The .03 used by each unauthorized text is .03 minutes she can’t use.  Perhaps in the scheme of things, not the most onerous injury, but an injury nonetheless.  And those .03 minutes may turn out to be a big headache for CBS.

    Go comment!
  • Donald Trump Meets Intellectual Property

    Jun 06, 2016

    Donald Trump last week cemented his position as the most bigoted presidential candidate since George Wallace.  And it was perhaps because of that issue that Mr. Trump decided to demonstrate on social media how much he is loved by minorities.  For that reason, Mr. Trump retweeted a post that featured a photograph of an African-American family with a caption saying “American Families for Trump.” 

     There are a couple of problems with the tweet.  First, the family does not support Trump.  And second, the person who tweeted the doctored photo (and by extension the person who retweeted the photo) had no permission to use the photo.  Which means the tweet violated the copyright of the photographer and the right of publicity for the family.   

    Now we know Trump has very little regard for the truth.  And civility.  And common courtesy.  But he also has similar disdain for laws protecting intellectual property.  And his blatant disregard for the tells us much about him, but it also illustrates why those laws matter.   

    It is fair to assume that someone who saw this particular tweet may think “maybe Trump isn’t as bad as everyone says.  A handsome African-American family is his corner, so maybe he’s not so bad.”  And at least as to this family, that statement would be incorrect.  The right of publicity allows people to control the use of their image.  There are at least three reasons for this.  First, if an advertiser wants to use someone’s photo in an ad, that person is entitled to compensation.  I assume even Trump would agree with this basic concept.   

    Second, the person whose photo is going to be used should have a right to say no – separate and apart from the money.  If someone offered me $1 million to use my photo for an “I Love The St. Louis Cardinals” ad campaign I’d say no. I suspect the family in the photo would feel the same way about using their photo for a Trump ad.  They should be given that right.   

    Finally, the public has the right to rely on information presented to them.  And a blatantly false Twitter retweet violates the public interest.  Laws protecting  Intellectual Property rights protect against all of the above.   

    Had Trump reached out to the family of the photographer before retweeting the bogus photo he may have discovered the truth.  But doing so would have required civility and common courtesy.  As we’ve noted, those are not high priority items for Trump or his campaign. 
    Go comment!
  • Right to Know Trumps Trump

    Jun 01, 2016

    Here is an excellent piece from Alison Frankel about the sheer absurdity of the ruling in the Trump University litigation that had sealed the records in the case.  In that 2015 order, a Magistrate Judge had sealed the Trump U “playbooks”  because he bought Trump’s argument that they were “trade secrets.”  As of 2015, the Ponzi scheme “University” hadn’t operated since 2010. 


    The playbooks demonstrate that Trump University sale people were trained to operate with the same integrity displayed by the average time share sales person.  The playbooks contained tips on how to instill a false sense of urgency, how to assess the potential l students’ “liquid assets” and other tricks known to con men everywhere. 


    Fortunately, the trial Judge – whom Trump, mustering all of the jurisprudential eloquence of which he is capable, refers to as a “hater” – recently unsealed the records.   That is unquestionably the correct decision, but Ms. Frankel wonders if it came too late.  Perhaps if his Republican opponents had been able to show in detail the sleaziness of the operation, they may have gained some traction.  Perhaps.  Or perhaps that too would have fallen on deaf ears.  We will never know.


    But the original decision to seal the records illustrates that courts should really be reluctant to seal records ever.  Courts are forums for public disputes.  And the public has a right to see what gets filed there.  Legitimate trade secrets – like product formulations or other truly proprietary information – may be subject to some protection.  But more often than not, parties seek to shield from public view material that is not a trade secret. And they do it, as in the Trump case, to avoid emabarrasment.  That is not a valid reason to shut the doors of the justice system.  Congratulations to Judge Curiel for doing the right thing. 


    Go comment!
  • Online Reviews May Spawn HIPAA Violations

    May 31, 2016
    Here is a fascinating piece from ProPublica about a disturbing trend in the online review world – health providers violating privacy protections enacted under the HIPAA statute.  These providers – who feel unfairly attacked on sites like YELP – may be violating federal law in their attempts to clear their names.  What they are likely doing is making a manageable situation WAY worse.

    I always like to note that the “P” in HIPAA doesn’t stand for “Privacy.”  HIPAA is the Health Insurance Portability and Accountability Act.  The statute itself doesn’t set out any privacy rules.  But the Health and the Human Services Agency, pursuant to enabling provisions in the HIPAA statute, has issued regulations providing for patient privacy.
    Of course HIPAA was enacted in 1996, so it’s likely that no one (except then VP Al Gore) was thinking much about the Internet.  And back then, sites like YELP and Ripoff Report didn’t exist. But they do now, and disgruntled patients use them to vent about unsatisfactory experiences with doctors, dentists, chiropractors and just about anyone you can think of.

    And I’m not saying doctors are thin skinned, but these reviews do tend to get them peeved.  And as so often happens when people are angry, they make bad decisions.  And in some cases, as detailed in ProPublica, the bad decision involves discussing specific treatment issues of the patients in online responses.  And that is almost certainly a HIPAA violation.

    When doctors get sued for malpractice, they can refer to the patient’s records in the litigation as a means to defend themselves.  But the “court of public opinion” is not really a court.  So the privilege that applies in litigation has no application in the online world.  Health care professionals, and anyone who has confidentiality duties (listen up lawyers!) should take note.
    It probably seems to doctors that they have to fight online with one hand tied behind their back – the disgruntled patient, who has no duty of confidentiality, can complain, but the doctor can’t disclose any detail to rebut the charge.  And that is kind of the way it is.  But as one sided as that may seem, it’s the law.  And no bad review can excuse ignoring it.  This is one of those times where the doctors just have to take their medicine. So to speak.    
    Go comment!
  • Hulk Hogan's Helpers

    May 25, 2016
    It turns out that Hulk Hogan’s lawsuit against Gawker may have been more of a tag team match than originally reported.  This fascinating/scary piece from Talking Points Memo notes that a Silicon Valley billionaire named Peter Thiel bankrolled the Hogan suit that resulted in a crippling $115 million judgment against Gawker.  According to the TPM piece, Nick Denton, the beleaguered owner of the publication, apparently got suspicious about whether a third party was financing the litigation based on the fact that “Hogan’s lawyers made key decisions which made zero sense if the goal was to maximize [Hogan’s] settlement.”  TPM also reports that in recent weeks, there have been several new lawsuits filed against Gawker and all brought by the same attorney who represented Hogan.   

    Now it’s entirely possible that the spate of lawsuits, all filed by the same lawyer are on the up and up.  Success breeds success as people say.   So if several plaintiffs had problems with Gawker, it’s not surprising that they may flock to the lawyer who secured a company killing verdict against it.   

    But it’s not so much on the up and up if the plaintiffs and the lawyer are doing the bidding of an unrelated party.  The common law had a term for that kind of conduct –“maintenance.”   It is defined as “the intermeddling of a disinterested party to encourage a lawsuit.”  A related concept is “champerty.” Champerty" is the "maintenance" of a person in a lawsuit on condition that the subject matter of the action is to be shared with the maintainer.  They were crimes and torts at common law.  And they should be.  Lawsuits are designed to resolve real disputes between the parties in the suit.  Lawsuits are not intended to provide opportunities for surrogates to fight out unrelated battles – especially where one of the combatants lurks in the shadows.  

    I won’t repeat the point made in the TPM piece other than to say it is a scary prospect that someone with enough money and vindictiveness can use the court system to shut down a publication he doesn’t like.  Given that one blow hard presidential candidate has called for “loosening up libel laws” the prospects are even more chilling.  Perhaps now would be a good time to re-visit the evils of “maintenance” and “champerty.” 
    Go comment!
  • Opinions -- Everyone's Got One

    May 23, 2016
    I don’t know if these days people are more opinionated than in times past.  Remembering dinners with my dad when I was a kid, I think not.  But, I do think that there are way more outlets for those opinions.   

    Some of those outlets – Facebook and Twitter for example, aren’t necessarily designed for sharing opinions, but as crazy uncles and well-coiffed presidential candidates have demonstrated, it draws them like moths to a flame. But  review sites – like YELP and Rotten Tomatoes -- exist precisely to gather and distribute opinions.   

    And that is what is for.  It offers users the opportunity to talk about their job – whether they hate it, love it or tolerate it.  And the users who contribute reviews presumably assume that they can speak freely, without fear of liability, for two reasons.  First, the site allows for anonymous comments.  So theoretically at least, the speakers are masked.  And second, and probably better, is the First Amendment’s protection for opinion.   

    Opinions can’t form the basis for a libel suit.  There is a fairly mundane reason for this.  A libel plaintiff must prove that the defendant made a false statement.  And a true opinion can’t be true or false. In my opinion, “Animal House” is the funniest movie ever made.  In my son’s opinion, that honor goes to “Old School.” Neither one of is wrong, but neither one of us is right.   And so neither one of us made a false statement.  And Will Ferrell can’t sue me.    

    But that fairly simple fact seems to have eluded a California lawyer named Philp Layfield.  He and his firm are pursuing a defamation suit against several anonymous posters for comments they made on Glassdoor.  According to a subpoena served on Glassdoor, Attorney Layfield wants to know who authored the following posts:

      1.  “Bad place to work (this company just changed its name) Research Layfield & Wallace”
      2. “Deceptive, Unethical, Poorly Managed, No Sense of Direction” 
      3. “You will HATE working here – Please read all the reviews” 
      4. “Working Here is Psychological Torture” 
      5. “New Admitees Beware!” 
      6. “For the love of God, do NOT work here” 
      7. “Anyone who gives this place a full rating has literally just started working there.” 
      8. “Working for Philip J. Layfield (a.k.a. Philip S. Pesin) Was Pure Misery” 
      9. “Horrible place to work. Unreasonably cruel.”
      10. “Phil Layfield Changed His Name from Phil Pesin for a Reason”
      11. “Don’t let the name change fool you, read the reviews for Layfield & Wallace. This is Phil Pesin’s way of ‘starting fresh'”
      12. “Layfield & Barrett, wallace or pesin STAY AWAY!!! BAD BOSS”

    I can see why he’s upset, but I can’t see why he thinks he has a case.  As unpleasant as the posts appear, they sure look like opinions to me.  Consider #1 – what makes a job a “bad place” to work?  Can anyone prove that’s a false statement?  Is it false to say a job is “pure misery”?  I don’t think so.  And I hope the court quashes the subpoena.  Anonymous speakers should not lose the right to speak anonymously (The First Amendment includes that right) just because someone’s nose is out of joint.  If the case lacks merit, so does the subpoena.   

    And it seems to me Attorney Layfield may have one more problem – truth.  It seems to me that to prove the statements are false, he has to prove that it’s great to work at his firm.  But if he sues people for expressing their opinion, how great could it be? 
    Go comment!
  • Ferguson Abuse of Power Resolved - Or Is It?

    May 20, 2016
    St. Louis County Missouri has agreed to drop criminal charges against Washington Post reporter Wesley Lowery and Ryan Reilly of the Huffington Post.  The reporters were covering the unrest in Ferguson nearly two years ago.  Watch this clip starting at the 2:45 minute mark to see what precipitated the arrest.  I’m no criminal lawyer, but from what I can tell the arrests – inside a McDonalds where the reporters were grabbing a bite -- were for the offenses of “not moving as fast as the cop wanted” and “asking questions is a respectful tone.”  I don’t know if those are felony level offenses or not.  

    Thanks in part to Twitter, the reporters were released from custody that evening.  But nearly a year later, prosecutors filed formal charges against them for trespassing and interfering with a police officer.   Now, almost two years after the initial arrest, the matter is being settled.  In exchange for the count dropping the charges, the reporters have agreed not to file any civil lawsuit.  All’s well that ends well?  

    I’m not so sure.  The initial arrest was an abuse of power by a cop.  Totally inexcusable, but given the tension that night, I can see it happening.  I’m more troubled by the prosecutor’s decision – nearly a year later – when there were no bullets firing or street fires burning – to file formal charges.  And I can’t help but wonder if those charges were filed precisely to serve as a bargaining chip to avoid liability for the initial arrest.   

    If so, that is true abuse of power.  And there is no excuse at all for that.   
    Go comment!
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