"Where there is no vision, the people perish: but he that keepeth the law, happy is he."
-- Proverbs 29:18, King James Bible (KJV)

Sunday, February 28, 2016

Drones, Laws and Safety: Aerial Drones Banned Without Specific Ski Area Owner Permission

Jeanette DeForge at MassLive.com headlines that Ski areas banning drones in Massachusetts, New Hampshire, Vermont unless an operator has specific permission from the ski area owners.

In our private discussions with recreational consumer drone enthusiasts, we have said from the very beginning that the law has been much too slow to adopt sensible regulations governing consumer drone use and operation, a delay which has led to unnecessary dangers and misunderstandings. In the U.S.A. alone, 700000 drones were sold last year. Rather than the laggards in Congress working to obstruct or to shut down the government, they should long ago have worked out comprehensive overall drone regulation legislation.

We think it is inevitable that drone operators in the future will have to obtain a government-defined drone use license and in the course of doing so will have to take a course in drone piloting and operation, including the obtaining of thorough knowledge of the dangers that drones can pose to individuals and to the public as well as a clear understanding of where drones can be operated and where not, and whether drone-made aerial photos and videos can or can not be published in print or posted online, and the extent of and reasons for any restrictions that are said to apply.

Ultimately, drone makers will have to install software and hardware that incorporates maps of no fly zones and makes it impossible for drones to enter such zones, e.g. airspace near airports, certain kinds of public and private property, etc.

Saturday, February 27, 2016

Patent Wars at an End? Samsung Wins Final Federal Circuit Appeal Against Apple With Positive Ramifications for Android

LawPundit has posted for years about the obviousness of many of the patents erroneously granted by the USPTO to patent applicants, especially as regards patents involved in the infamous patent cases of the patent troll Apple, Inc. against Samsung. See Apple Inc. v. Samsung Electronics Co. for a summary of the patent war cases between Apple and Samsung.

The virtually last remnants of that string of cases have now been decided by the Federal Circuit (download the .pdf of the court opinion here) and, once again, we are gratified to see that we have been substantiated in almost all points of our own analysis on these patent war cases -- as one patent after another has fallen into the judicially-determined realm of "obvious, invalid", including the absurdly granted now invalid "bounce-back" and "pinch" patents.

We have been right in our analysis on almost all counts, contrary to what was generally posted online initially by others -- with few exceptions -- i.e. by the mainstream news media and by mainstream academics and bloggers.

We are further gratified to see that Kathleen Sullivan, former Dean of Stanford Law School -- our Law School alma mater -- now a partner at Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, argued the most recent case winningly for the defendant-appellants Samsung.

The Wikipedia writes that Sullivan is the "first and only woman name partner at an Am Law 100 law firm" and cites to Kalia, Jaishree (July 22, 2014). Women in law: Quinn Emanuel’s name partner Kathleen Sullivan and London MP Sue Prevezer QC talk diversity, Legal Business, retrieved July 6, 2010.

Without disputing that Sullivan could be the first and only female "name" partner at an Am Law 100 law firm -- we really do not know, it all depends on your definition -- there are of course other women partners of rank at law firms, and we do want to mention Judith R. Thoyer here, who was at Paul, Weiss when we are an associate at the firm. Thoyer is now "Of Counsel" to Paul, Weiss after having headed the firm's big-time Mergers & Acquisitions Group (M&A). She is surely entitled to a pioneer status!

We must admit that we were somewhat surprised by the wholesale Federal Circuit ruling in favor of Samsung here, given past Federal Circuit patent-happy decision-making. Indeed, we have roundly criticized the Federal Circuit and its judges on many occasions in our postings for their failure to either properly understand or apply patent law -- witnessed by the many U.S. Supreme Court reversals of their decisions, so we hope that this eminently sensible decision is a landmark turning-point for the present Federal Circuit.

The final resolution of these many cases almost totally against Apple, Inc. also brings a sigh of relief to the rest of the high tech community, especially the makers of Android phones faced with the prospect of Apple, Inc. patent trolling about patents now deemed correctly to be obvious and invalid.

The case was argued before Chief Judge Prost, Circuit Judge Dyk and Circuit Judge Reyna, with Judge Dyk writing the opinion in the case. The court holding is a total washout for Apple, Inc., as well it should be, and as the court opinion writes:
"In conclusion, we reverse the district court’s judgment of infringement of the ’647 patent and the judgment of no invalidity with respect to obviousness of the ’721 patent and the ’172 patent.  Samsung was entitled to a judgment of non-infringement of the ’647 patent and a judgment of invalidity as to the ’721 and ’172 patents.  We affirm the judgment of non-infringement of Apple’s ’959 patent, Apple’s ’414 patent, and Samsung’s ’239 patent and affirm the judgment of infringement of Samsung’s ’449 patent.  In light of these holdings, we find that we need not address any of the other issues on appeal.
AFFIRMED-IN-PART, REVERSED-IN-PART
"
Apple, Inc. could try to appeal this holding to the U.S. Supreme Court, but, in our opinion, that would be a colossal waste of time for everyone, because it should have become clear to the entire legal community by now that the foregoing patent wars -- as the current purportedly "free speech" smartphone unlocking wars -- are part of the Apple firm's marketing strategy to sell their range of products -- made overseas --to the American public at vastly inflated prices and for commercial profit -- revenues largely not taxed in America but parked in offshore accounts, much to the detriment of the U.S. Treasury.

Judge Learned Hand once penciled to his colleague Judge Clark about the latter's failure to understand why Hand spent so much time in sifting precedents before over-ruling a case (I paraphrase), "it is essential for the law to do this, but you will never learn this from me, never from me!" (I saw that handwritten notice -- without my then copying the actual text -- in a marginal note by Hand to Clark in the papers of the 2nd Circuit Court of Appeals during the time that I was the student assistant to Professor Herbert Packer at Stanford and responsible for the task of sorting and indexing the papers.)

So it is with the patent system. There has for years been good reason for the juridical results we are finally seeing in the patent troll cases, but most of the rest of the legal community will never learn this from me, never from me!

Tuesday, February 23, 2016

Will Eero Revolutionize Wi-Fi Networking by Providing Consistent Fast Connections Throughout the Home? A Glowing Review at Fortune Magazine by Eero Tester Jason Cipriani

Eero came on the scene as a start-up one year ago, claiming it had found a way to fix home networking Wi-Fi connectivity problems and to provide consistent (fast) connections in the home.

However, the right build took time.
Now, one year later, Eero has gone on stage.

Eero started shipping today, February 23, 2016,
filling orders in part made already a year ago by early adopters.

Jason Cipriani (@MrCippy), consumer tech writer at Fortune magazine, has a glowing review of Eero, which he installed for testing a week ago.

See Review: Eero Is the Future of Home Networking - Fortune.

Cipriani says it works for him. Take a look.

Five Things to Know Before You Buy a Drone

MyFirstDrone has a very helpful and potentially USEFUL piece for buyers on
5 Things You Should Know Before You Buy a Drone.

Monday, February 22, 2016

Buying a Quadcopter Drone or Similar? MyFirstDrone Has an Updated List of Best Drones

Looking to buy your first drone and need to know where to start? Korey Smith at MyFirstDrone has an updated February 2016 List of Best Drones For Sale.

Legal Aspects of FPV Drone Flight vs. Line-of-Sight Drone Flying

Mark LaFay in Drone Flight Modes For Dummies has a take on the legal difference in the United States between "line-of-sight" drone flying and "first person view" (FPV) drone flying using a camera and a viewing screen to (help) pilot a drone.

LaFay writes that: "The FAA hasn’t placed an official ban on FPV flying, but the law specifically says that if you are hobby flying, you must fly line-of-sight. That said, if your drone offers FPV flight mode and you want to limit your risk of potentially getting busted, you should fly out in the middle of nowhere."

As regards specific laws and regulations applicable to drones in the U.S.A., we refer to a professional view at Current U.S. Drone Law by Peter Sachs at the Drone Law Journal and to our previous LawPundit posting at FAA Announces Mandatory Drone Registration Effective Virtually Immediately ! Get it Done !

The restricted legal status of FPV flying explains in part why "FPV drones" are less frequently offered commercially (for now) than "line-of-sight drones".

Two other reasons for the dominance of line-of-sight drones on the market is of course that FPV camera drones are much more expensive and because the added weight of a proper camera and apparatus cuts down on flying time.

Persons such as myself are, however, not so interested in having a camera on board to help "pilot" the drone as such -- as opposed to using line-of sight for general piloting.

However, we ARE interested in using a camera-enabled FPV drone to better place it in the air in order to make aerial photographs of ancient megalithic or other very old archaeological sites from directly above the megaliths, mounds, earthworks, etc.

Our pre-drone-era models in that regard are some books about prehistoric Britain from the air, which used photographs made from other flight vehicles other than drones. There is much to be done here now in the drone era as regards, e.g. megalithic sites. It is a new aspect in archaeological-type work.

Jerome A. Cohen of NYU Law School Asks Whether Ideology is Trumping Law in China and Creating a Crisis for China's Legal System

At ForeignPolicy.com, NYU Law School's Jerome A. Cohen writes that there is a A Looming Crisis for China’s Legal System in the offing.

This is a very interesting read because Cohen also summarizes the great advances that the Chinese legal system has made in recent decades.

As Cohen writes:
"Since 1979, despite political changes and sometimes harsh repression, China has witnessed the construction of a comprehensive legal system....

Judicial reform is one of the main challenges now confronting Chinese President Xi Jinping. Despite his emphasis on “rule of law,” Xi wants local courts reliably to submit to the discipline of the central party and judicial officials.
"
Our question of course is whether that is really any markedly different from the political "Party" meddling taking place in the United States as regards the upcoming nomination of a new Justice to the U.S. Supreme Court to fill the seat vacated by the passage of Justice Scalia.

Sunday, February 21, 2016

How to Get Rich? 25 Top Hedge Fund Managers Earn More than Top 500 CEOs

Want to get rich? Are you in the right field and in the right position?

At Forbes, Robert Lenzner in a somewhat dated but surely still "current" article, writes that The Top 25 Hedge Fund Managers Earn More Than All the 500 Top CEOs Together.

And, we might add, those CEOs are already vastly overpaid.

Why does society permit these gross inequalities and what does it gain us?


Friday, February 19, 2016

New York Times Editorial Board Wrong Once Again As Regards Apple, Inc. Failure to Abide by Court Order

What is it about the current New York Times Editorial Board that they sometimes seem so demonstrably misguided in their main editorials?

What has happened to the common sense of this group?

They have done it again in their editorial about Why Apple Is Right to Challenge an Order to Help the F.B.I.

One of the reasons that we do not subscribe to the NY Times is because we do not want to support this kind of errant thinking and surely well-meaning but clearly misguided newspaper publishing and editorializing.

What is the argumentative basis for the editorial? Is there any?!

In fact, the Editorial Board has a very weak position in thinking that it is UNREASONABLE to require Apple, Inc. to abide by the court order. The Editorial Board alleges that it would place an undue BURDEN on the giant commercial profit-making company that is rolling in cash.

Really? a BURDEN? More unreasonable than when the government compels a normal citizen to do any number of things ? that we do not list here, because everyone knows good examples of government compulsion.

Are the big guys exempt from obeying court orders? Not in our book.

We have read over past years in the mainstream media that Apple has more cash in the bank than even the U.S. federal government, which is no surprise. Apple pays virtually no domestic taxes, exploits labor overseas which would be contrary to child and other labor laws in the USA and stores its profits overseas, so that taxes do not have to be paid into the U.S. Treasury. Rather, the company is systematically plundering the nation.

All of that has not prohibited Apple at the same time from shamelessly using American legal infrastructure profusely to further its own profit-making ends, a costly endeavor paid for by your average and we think quite clueless taxpayer.

Just what "unreasonable" BURDEN is the Editorial Board talking about?

In fact, the editorial board has NO IDEA AT ALL how easy or difficult it would be for Apple, Inc. to abide by the court order, a fact which does not keep the writers of the editorial from engaging in all kinds of idle speculation about what Apple would have to do to abide by the court's order.

NONSENSE.

We think it very likely that Apple already has the technical means and knowledge on hand to obey the court order virtually immediately, but they refuse to do so, for greedy profit-making motives, that is all.

People do not sincerely think that companies on the scale of Apple, Inc. devise encryption methods that even they themselves do not know how to break, and even to accomplish that quickly. They know its ins and outs.

Obviously, any encryption method has to be tested thoroughly by a company before it is implemented. They know where and how to bypass the encryption, if necessary. There is always a back door -- in case something goes wrong, and a back door has to exist during software and hardware development, otherwise they would lock themselves out and could not finish the project.

Why not ask point blank just how much time it would take to comply with the court order and what it would cost -- with an honest answer demanded, and with perjury as the penalty for lying.

An "unreasonable burden" for Apple, Inc.?

Not on this planet.

Besides, a strong President of the United States could easily issue an executive order and nationalize the company Apple, Inc. for as long as it takes to comply with the court order, thus putting the company under government auspices and rendering any private Apple, Inc. contrary arguments moot. A strong executive has that power -- courts and legislatures notwithstanding.

There is a reason why outsiders are dominating the Presidential election process thus far. People are fed up with our weak political leaders and with a legal system that has lost all semblance of common sense.


Wednesday, February 10, 2016

Experts and Expertise: How Much Does an Expert Really Know? As Knowledge Increases, So Does Overclaiming of What is Actually Known

You Don't Know as Much as You Think: False Expertise is the title of an article by Jessica Schmerler at Scientific American reporting on a study by researchers at Cornell University and Tulane University published in Psychological Science.

The study found that people with a self-perceived "knowledge" of a subject tend to "overclaim" their actual knowledge in that subject. The more they know or think to know, the more they overclaim what they actually do know.

That research explains a phenomenon we have encountered repeatedly in our own research work, which is the vast overclaiming of knowledge in archaeological disciplines and related historical fields by so-called mainstream "experts". After all, who can check them for things that happened in the past?

One can see this overclaiming demonstrated particularly in so-called historical TV "documentaries", where much of the material presented often consists of nothing more than pure guesses and unsubstantiated suppositions and "overclaims" of knowledge. Things are presented as if they were "true", whereas much of what is communicated is simply the fantasy of the experts.

Given the findings of the Cornell study, one might conclude that this phenomenon of overclaiming applies to all fields of human knowledge and activity. We see this particularly among "Presidential candidates".

The "free" Abstract of the study by Stav Atir, Emily Rosenzweig and David Dunning is titled "When Knowledge Knows No Bounds: Self-Perceived Expertise Predicts Claims of Impossible Knowledge" and is found at Sage Journals at http://pss.sagepub.com/content/early/2015/07/14/0956797615588195.abstract

The price to download the full article ($35) seems to be "anti-knowledge". The next step from a study of "overclaiming" might be a study of "overpricing", and whether the same human psychology is at work in both cases.

Tuesday, February 09, 2016

Classic Shell Instead of the Badly Designed Microsoft Windows 10 Explorer: e.g. Greater File Sub-Folder Indents DO Make a Difference for Readability

Boris Hofferbert at Der Tutonaut in http://www.tutonaut.de/tipp-klassisches-startmenue-fuer-windows-10-einrichten.html provided us with the impetus to install Classic Shell http://www.classicshell.net/, at whose pages it is written about the system requirements:
"Classic Shell works on Windows 7, Windows 8, Windows 8.1, Windows 10 and their server counterparts (Windows Server 2008 R2, Windows Server 2012, Windows Server 2012 R2, Windows Server 2016). Both 32 and 64-bit versions are supported. The same installer works for all versions. Note: Windows RT is not supported."
The graphic user interface of Windows 10 has many inexplicable design flaws. Some of the flaws are "small" but have a large impact on user usability.

As an example, the file sub-folder indents in Windows Explorer in Windows 10 are simply too small for good differentiation in viewing. We find that peering for hours per day at a screen is made even more tiresome by navigating the overly "tightly placed" files in Windows 10, especially if there are many of them to be used. Design should primarily follow FUNCTION, rather than form.

Thankfully, there is a solution at the program Classic Shell which provides this menu option:
"Full-size offset for sub-folders
("When this is checked, the subfolders will be offset by the full size of the [folder] icon, instead of the half of the size")".
That "small" change makes a "big" difference and is essential to those of us who may be somewhat older and no longer have the eyes of an eagle. Greater offsets make working with sub-folder files in Explorer much, much easier.

"Better readability" is why text paragraphs in books are normally indented more than just one letter. It makes reading easier. Indeed, we are waiting for Blogger to come to this recognition as well, as there is no provision at all for indents. Instead, we separate paragraphs by empty lines. It reads better.

The entire file Explorer interface pays little attention to user comfort and is especially flawed in taking the protection of user eyesight into account. Good examples are the teeny-tiny "forward" and "back" arrows in Windows Explorer, which by their poor placement, minuscule size and hard-to-spot gray color are hard to spot in practical daily usage and one is constantly "looking" for them.

Design "amateurs" in Redmond wrongly opted for minimalist "form" rather than proper function, and that flaw permeates Windows 10.

We need arrows that are immediately spotted and are ergonomically placed. Frequently used, operational image icons must be readily VISIBLE!

We do not know if it will work for you, but Classic Shell definitely has numerous sensible features that -- for us -- are vast improvements over the flawed Windows 10 graphic user interface and design.

Addendum: Classic Shell also has an option -- Tree Item Spacing -- for the file Explorer to make the spacing between the files larger, thus putting more white space between the entries. We set this value at "1" rather than "0" and for us, it makes it much easier to navigate the files.

The Practice of Law, the Bar, the Regulation of Nontraditional Legal Services: Resolution 105 of February, 2016 of the ABA House of Delegates Adopting the ABA Model Regulatory Objectives for the Provision of Legal Services

The monopoly of lawyers on "legal services" is a matter of long standing that is enforced in the United States by "bar associations" of attorneys.

Those particular "bars" are not drinking bars. Rather, a bar association takes its name from a wooden bar in the courtroom that once divided the lawyers from the masses in England in the Middle Ages.

As written at Call to the bar at the Wikipedia:
"The call to the bar is a legal term of art in most common law jurisdictions where persons must be qualified to be allowed to argue in court on behalf of another party, and are then said to have been "called to the bar" or to have received a "call to the bar". "The bar" is now used as collective noun for barristers, but literally referred to the wooden barrier in old courtrooms, which separated the often crowded public area at the rear from the space near the judges reserved for those having business with the Court.

Barristers would sit or stand immediately behind it, facing the judge, and could use it as a table for their briefs. Like many other common law terms, the term originated in England in the Middle Ages, and the call to the bar refers to the summons issued to one found fit to speak at the 'bar' of the royal courts. In time, the English judges allowed only legally qualified men to address them on the law, and later delegated the qualification and admission of barristers to the four Inns of Court. Once an Inn calls one of its members to its bar, they are thereafter a barrister. They may not, however, practice as a barrister until they have completed (or been exempted from) a pupillage. After completing pupillage they are considered to be a practising barrister with a right of audience before all courts.
This limitation from the Middle Ages on who was qualified to address judges in court led to the similar development in the USA that limits "the practice of law" to persons who are licensed to do so by the applicable State "bar" association, which serves as the modern "bar" viz. "economic barrier to entry" to being licensed as an "attorney at law".

This monopolistic licensing of attorneys has been successful historically in promoting the rule of law in America, but has run into problems in our modern technological age, where the traditional scope of "law" has increased dramatically and where many new challenges must be faced.

Various new demands of the digital era have necessarily given rise to what can only be called a large market for "nontraditional legal services" that do not always fit neatly into bar association standards of what constitutes the qualified viz. licensed "practice of law".

As written by Lorelei Baird at the ABA Journal, the ABA House of Delegates has now adopted the ABA House of Delegates Resolution 105, which provides:
"105 AMENDED
ADOPTED AS REVISED AND AMENDED

RESOLUTION


RESOLVED, That the American Bar Association adopts the ABA Model Regulatory Objectives for the Provision of Legal Services, dated February, 2016.

ABA Model Regulatory Objectives
for the Provision of Legal Services
 
A. Protection of the public
B. Advancement of the administration of justice and the rule of law
C. Meaningful access to justice and information about the law, legal issues, and the civil and criminal justice systems
D. Transparency regarding the nature and scope of legal services to be provided, the credentials of those who provide them, and the availability of regulatory protections
E. Delivery of affordable and accessible legal services
F. Efficient, competent, and ethical delivery of legal services
G. Protection of privileged and confidential information
H. Independence of professional judgment
I. Accessible civil remedies for negligence and breach of other duties owed, and disciplinary sanctions for misconduct
J. Diversity and inclusion among legal services providers and freedom from discrimination for those receiving legal services and in the justice system
FURTHER RESOLVED, That the American Bar Association urges that each state’s highest court, and those of each territory and tribe, be guided by the ABA Model Regulatory Objectives for the Provision of Legal Services when they assess the court’s existing regulatory framework and any other regulations they may choose to develop concerning non-traditional legal service providers.
FURTHER RESOLVED, that nothing contained in this Resolution abrogates in any manner existing ABA policy prohibiting non lawyer ownership of law firms or the core values adopted by the House of Delegates in Resolution 10F, adopted on July 11, 2000.
 
DELETIONS STRUCK THROUGH; ADDITIONS UNDERLINED"
Lorelei Laird quotes ABA President Paulette Brown, who released the following statement after Resolution 105 was adopted:
"The adoption of Resolution 105 is intended to create a framework to guide the courts in the face of the burgeoning access to justice crisis and fast-paced change affecting the delivery of legal services. The ABA Model Regulatory Objectives for the Provision of Legal Services that was adopted provides for the protection of the public, the advancement of the rule of law, the independence of professional judgment and diversity and inclusion among legal services providers as well as freedom from discrimination for those receiving legal services. Moving forward, it allows the assessment of regulations that may develop concerning nontraditional legal service providers. The ABA recognizes the importance of evaluating the changes in delivery of legal services and the need for the ABA to carefully analyze these changes so that the public and the legal profession are protected and lawyers maintain the ability to serve their clients."
This resolution by no means resolves the many questions raised for traditional lawyers by nontraditional legal services, as Lorelei Laird reports in her article in the ABA Journal. Take a look.


Friday, February 05, 2016

Content Marketing as a Form of Legal Services by Law Firms and Attorneys to Assist in Client Acquisition

At Huffpost Business, Brian Hughes explains
Why Legal Firms Are Racing to Adopt Content Marketing.

Legal Rights, Consumers, Courts of Law and Forced Arbitration in the Focus of a Newly Introduced Bill in Congress

Arbitration can be an excellent dispute settlement option if parties agree after the arising of a dispute to opt for that solution.

The 1925 Federal Arbitration Act, however, has more or less been interpreted by U.S. Supreme Court decisions to bind contracting parties to arbitration if their contract contains a binding arbitration clause -- thus closing off suits in courts of law. This "forced" arbitration is spreading in consumer contracts.

Many contracts contain such a clause in the fine print, and there is no arms-length bargaining about it in most cases. Parties are thus stuck to arbitration, even if they do not want to waive a process in a court of law after a dispute has actually arisen subsequent to the signing of the contract.

Chris Morran has the story at the Consumerist in Bill Aims To Restore Consumers’ Legal Rights Stripped Away By Supreme Court Rulings – Consumerist, writing:
"Today [February 4, 2016], Sen. Patrick Leahy from Vermont and Sen. Al Franken from Minnesota announced the Restoring Statutory Rights Act [PDF], states that the 1925 Federal Arbitration Act “did not, and should not have been interpreted to, supplant or nullify the legislatively created rights and remedies which Congress… has granted to the people of the United States for resolving disputes in State and Federal courts.”"
Read the full story here.