Back in 2016, we began a series of posts about a tattoo artist suing Take-Two Software over the faithful depiction of tattoos on several NBA players' bodies. The whole thing was fairly insane, with Solid Oak Sketches appearing to claim that because players had its tattoos on their bodies, those players no longer had the full control and ability to profit off of their own likenesses in video games. While the court in that case allowed that case to go to trial, the court also ruled in favor of Take-Two in summary judgement, ruling that fair use of course protected such depictions as a matter of art and speech with minimal copying as part of the game. What made the lawsuit particularly cringe-worthy was the implications of its argument. As I said at the time:

Put another way, it could be said that by branding the player with Solid Oak's designs, the company seems to think it can control the players' ability to profit off of their own likenesses. That this draws the mind to very uncomfortable historical parallels apparently was of no issue to Solid Oak.

That case should have sent a clear message to tattoo artists nationwide that such depictions didn't constitute copyright infringement. Instead, Take-Two again finds itself in a different court hearing what is essentially exactly the same case, but this time substituting a WWE wrestler for NBA players. Catherine Alexander was Randy Orton's tattoo artist and came to learn that Orton's appearance in a WWE video game included depictions of those tattoos. In addition, the WWE is selling arm sleeves depicting Orton's tattoos. This time, the court failed to get the suit against Take-Two tossed in the summary judgement phase.

On Saturday, an Illinois federal judge handed her partial summary judgment by determining that WWE and Take-Two Interactive Software, the publisher of the WWE 2K series of video games, had indeed copied her work. Now the question for a jury is whether that rises to copyright infringement. The judge denies the defendants' own motion for summary judgment by deciding that certain questions are triable ones. Those include whether Alexander impliedly licensed Orton to disseminate and display the six tattoos she inked for him.

Take-Two may have a problem here. In the NBA2K case, the court relied on the game's use of players' tattoos being de minimis, thereby not causing harm to the copyright holding tattoo artist. In the Seventh Circuit, where this case is being conducted, de minimis use isn't a factor by precedent.

U.S. District Court Judge Staci Yandle's decision setting up the first copyright trial ever to focus on the unauthorized reproduction of tattoos will likely surprise those who figured the issue to be largely resolved.

"Whether the Seventh Circuit recognizes this defense to copyright infringement claims is an open question," writes Yandle, adding that she doubts the defense is viable generally and in this particular situation. "The defense has been successfully invoked to allow copying of a small and usually insignificant portion of the copyrighted works, not the wholesale copying of works in their entirety as occurred here."

Which is odd, because that isn't how the de minimis exemption is applied in the NBA2K case. It isn't how much of the copyrighted work you use, it's how much that use factors into the overall protected work in which it appears. In the NBA2K case, for instance, the court noted that while the entire tattoos of players were reproduced, those images barely factored into the overall work and weren't generally the focus of the player.

But we're left with the same question: can a tattoo artist, even at an athlete's request, essentially brand the player such that they can no longer profit off of their own likeness? The judge in this case seems to think that question is a matter for a jury to decide.

On the first factor of fair use, for example, the judge's opinion states, "Alexander contends she created the tattoos for the purpose of displaying them on Orton’s body and that Defendants used the tattoos for the same purpose; to display them on Orton’s body in the video games. Alexander also disputes Defendants’ characterization of the size of the tattoos and maintains they are prominently displayed and clearly visible in the video games. These are material factual disputes."

But that's crazy. It isn't how likeness rights work. And it isn't how fair use allows for the faithful representation of reality in works of art, video games included. Hopefully Take-Two's lawyers can drive this home with a jury.

As Techdirt has reported many times, open access is a self-evidently great idea, but one that is still beset with many problems. That's not least because academic publishers are keen to remain in control of any transition to open access, and aim to maintain their extremely high profit margins whatever the publishing model. But there's one problem for open access that ironically derives from its greatest strength -- the fact that anyone can access journals at any time, for free. Because material is always available, librarians have tended not to worry about making some kind of backup. That's not the case for traditional journals, where there is potentially a big problem if a subscription is cancelled. The end of a subscription often means that readers lose their existing access to journals. To address this, librarians have come up with a variety of ways to ensure "post-cancellation access", explained well in a 2007 post on a blog about digital preservation, written by David Rosenthal. A recent article on the Internet Archive site provides some interesting statistics on the scale of the problem of creating permanent copies of open access titles:

Of the 14.8 million known open access articles published since 1996, the Internet Archive has archived, identified, and made available through the Wayback Machine 9.1 million of them... In the jargon of Open Access, we are counting only "gold" and "hybrid" articles which we expect to be available directly from the publisher, as opposed to preprints, such as in arxiv.org or institutional repositories. Another 3.2 million are believed to be preserved by one or more contracted preservation organizations, based on records kept by Keepers Registry... These copies are not intended to be accessible to anybody unless the publisher becomes inaccessible, in which case they are "triggered" and become accessible.

This leaves at least 2.4 million Open Access articles at risk of vanishing from the web... While many of these are still on publisher's websites, these have proven difficult to archive.

That's a pretty serious problem, and one which the Internet Archive is taking steps to address, for example by trawling through the petabytes of Web content that it has built up since 1996. There's an editable catalog with an open API that aims to provide "Perpetual Access to Millions of Open Research Publications From Around The World". Internet Archive has also created a full-text search index to over 25 million research articles and other scholarly documents.

Although few people are aware of this project, it is vital work. There is little point publishing open access titles, theoretically available to all, if their holdings simply disappear at some point in the future. The Internet Archive's copies will ensure that doesn't happen. They are yet another indication of the invaluable and unique role the site plays in the online world. Without it, we would already have lost so much of the amazing material that was once online, but which has since vanished except for the copies held by the Wayback Machine. Another good reason to support this incredible, free resource financially, and to help defend it from incredibly selfish attacks by publishers.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Asset forfeiture remains one of the most abused law enforcement practices in the country. While some attempts have been made to rein in this abuse, in most locales, it's just considered a useful law enforcement tool with minimal downsides.

Pennsylvania has some of the worst asset forfeiture laws in the nation. And it shows. Law enforcement has occasionally been benchslapped by judges for traveling past the wide boundaries granted to it by local legislators. In one case, a judge stopped the state from seizing a grandmother's house just because her son sold officers $140-worth of marijuana from the residence.

In another case, a judge excoriated officers for stripping a house of everything with possible resale value under the pretense that anything of value in it must have been purchased with drug money.

The Drug Task Force does not seize furniture or clothing, silverware, or other items that have low resale value. They focus upon items that have high resale value. That is not a problem in itself, until the police begin to ignore that there must be a nexus to drug dealing or drug money to seize those higher high value assets. [...] In this case the Drug Task Force personnel ignored the need for such a nexus and engaged in a shopping spree, for the benefit of their budget, based solely on the property's resale value.

The problems continue in Pennsylvania. Courts stop what they can when they see obvious abuse, but they never see most forfeiture cases because seizures require money and legal talent to challenge, which are things most forfeiture victims don't have on hand.

Without a lawyer, people stand little chance. Of the 32 cases The Appeal and Spotlight PA reviewed, the state returned cash or property only when a lawyer got involved, according to case records from the Office of the Attorney General. Out of the $608,000 seized and subsequently prosecuted, the attorney general’s office gave back less than $60,000 after negotiating with property owners' lawyers.

In more than 75% of the cases reviewed, no challenge was raised or the challenge was raised improperly. Both led to the same outcome: the state taking possession of the seized assets.

In some cases, Pennsylvania law enforcement has deemed seized cash to be "guilty" simply because it's been in circulation. The article cites two studies detailing how much drug residue ends up on cash, which has the possibility of turning innocent people into suspects Pennsylvania cops have no interest in charging criminally. A 2008 study showed 42% of currency had trace amounts of meth on it. A 2009 study said nearly 90% of currency is contaminated with cocaine residue. If Pennsylvania cops can't find another pretext to seize cash, they'll test the cash itself for drug residue and go from there.

Out of 11 cases reviewed by The Appeal and Spotlight PA in which no charges were filed, the attorney general’s office justified seizing people’s money after testing the cash for drug residue in 10 of them.

Much of what law enforcement seizes comes from traffic stops. But these stops were so pretextual and bereft of probable cause, roughly a third of all criminal cases arising from traffic stops by drug interdiction officers were thrown out. That hasn't stopped cops from stopping people and trying to talk them out of their cash. They've just become a little more careful and a little less likely to copy-paste non-specific boilerplate like "criminal activity was observed."

But the main point of forfeiture in Pennsylvania is to enrich the agencies participating in it. For all the talk about cracking down on the dangerous drug trade, very few serious criminal charges are tied to forfeitures.

In about one-third of the cases reviewed, police seized cash from people who were never charged with a crime or even issued a traffic ticket. One-quarter of the cases resulted in misdemeanor convictions, and another quarter resulted in felony convictions.

This is how the system works. It has been streamlined for maximum law enforcement efficiency. It serves only the agencies that directly benefit from it. And unless legislators are willing to take on powerful law enforcement interests, it is never going to change.

I am perplexed. Nicholas Sandmann, the Kentucky teenager who had a highly publicized and widely debated encounter in Washington DC is somewhat of a Rorschach Test for how you view the media. There are all sorts of interpretations of his encounter, and all sorts of arguments about the media coverage of that encounter -- and much of it is driven by people's prior beliefs. What should not be controversial, however, is that his ongoing series of SLAPP suits about the media coverage of that encounter are an attack on the 1st Amendment.

We were a bit surprised that (after first having the case thrown out before it was reinstated on very narrow grounds), the Washington Post agreed to settle, as did CNN. Given the basis of the case, and the nature of defamation law, it seemed highly likely that the cases settled for what is known as a "nuisance fee." Less than it would cost to actually bring the case to conclusion, but not a significant amount to either media property. Of course, Sandmann's lawyer has threatened to sue some more journalists and end careers of some who speculated on the nature of the settlements, though as far as I can tell, no such lawsuits have been filed.

That said, there was a long list of other Sandmann lawsuits filed against major media companies for reporting on his DC encounter. All of them are under the same judge, William Bertelsman, and he has now refused to dismiss all of them. The opinions in the cases against the NY Times, ABC News, Rolling Stone and CBS News are all virtually identical.

I will admit that I am perplexed by the judge's reasoning in these cases, which does not seem anything even remotely like any other defamation case I've ever seen. Because the rulings are all pretty similar (with just some slight differences), we'll just go through the ruling against the NY Times and highlight some of the oddities. The judge summarizes the case and then just says "well, I found the statement to be libelous in previous cases, and therefore it is here."

The Complaint is based on the defendant’s news coverage of an event that occurred on January 18, 2019, during a visit by plaintiff Nicholas Sandmann and his fellow Covington Catholic High School students to Washington, D.C.

Greatly summarized, the Complaint alleges that Sandmann was libeled by the defendant when it published a news article stating that Sandmann, while at the Lincoln Memorial, “blocked” Native-American activist Nathan Phillips and “prevented Phillips’ retreat while Nicholas and a mass of other young white boys surrounded, taunted, jeered and physically intimidated Phillips.”....

This news story is alleged to be false and defamatory.... Sandmann further alleges that this publication by defendant and similar stories by other news media caused him to be harassed by the public, causing him great emotional distress..... Sandmann also alleges that defendant’s article “is now forever a part of the historical Internet record and will haunt and taint Nicholas for the remainder of his natural life and impugn his reputation for generations to come.”...

The motion to dismiss argues that this publication is not libelous, but the Court has ruled in companion cases that it is libelous. The Court continues to hold that opinion for the reason stated in such preceding cases. See Sandmann v. The Washington Post, Cov. Case No. 19cv19 (Docs. 47, 64); Sandmann v. Cable News Network, Cov. Case No. 19cv31 (Docs. 43, 44); Sandmann v. NBCUniversal Media, LLC, Cov. Case No. 19cv56 (Doc. 43).

So, there are a bunch of oddities already in here, but I'll just focus on that last paragraph, in which the judge says that "the Court has ruled in companion cases that it is libelous" and then points to those other cases. But, that's not what actually happened. The key case that matters here is the one against the Washington Post. The judge points to two documents in that case: 47 and 64, neither of which have the judge saying that these statements are libelous. In fact, the only thorough analysis of the statements comes in document 47 and it concludes that... what was written by the Washington Post was not libelous. It goes through it all pretty thoroughly and notes that the claims of libel are either protected opinion or not about Sandmann himself.

More to the point, this ruling -- again by the same judge -- says that what constitutes "blocked" is a subjective matter of opinion and thus not defamatory:

This is kind of important, because it's the exact same statement that is the basis of all of these lawsuits that the judge refused to dismiss.

Yet, he says that he found that statement to be defamatory... while pointing to a filing in which he did the opposite. Now, in the later ruling that reinstated a tiny, limited part of the case (filing 64) involving that same statement, the judge says that he will allow for more discovery before deciding on whether or not they're defamatory.

The Court will adhere to its previous rulings as they pertain to these statements except Statements 10, 11, and 33, to the extent that these three statements state that plaintiff “blocked” Nathan Phillips and “would not allow him to retreat.” Suffice to say that the Court has given this matter careful review and concludes that “justice requires” that discovery be had regarding these statements and their context. The Court will then consider them anew on summary judgment.

The other cases that the judge mentions as proving he found these statements libelous only point back to the Washington Post filing... that again says the opposite. So the judge is basing his ruling on the fact that he already found these statements to be libelous when he didn't actually do that. It's the most bizarre thing I've seen from a federal judge.

From there he goes on to quote the same paragraph (oddly leaving out quotation marks where they obviously belong):

As in other cases, the Complaint herein alleges that the defendant’s article quoted the following statement by Phillips:

It was getting ugly, and I was thinking: I’ve got to find myself an exit out of this situation and finish my song at the Lincoln Memorial, Mr. Phillips told The Post. I started going that way, and that guy in the hat stood in my way and we were at an impasse. He just blocked my way and wouldn’t allow me to retreat.

The Complaint alleges that this statement was false in that Sandmann did not block Phillips or interfere with him in any way, and that it conveys a defamatory meaning because it imputes to Sandmann racist conduct.

Note that this is again the same statement that the court originally found to be not defamatory and then later said he would allow discovery on, but over which the case settled before going much further. So I'm completely lost as to how the judge can say he already found this to be defamatory.

The parties agree that Kentucky law applies to this case. Under Kentucky law, a writing is defamatory “if it tends to (1) bring a person into public hatred, contempt or ridicule; (2) cause him to be shunned or avoided; or (3) injure him in his business or occupation.”... The allegations of the Complaint fit this definition precisely.

Wait... what? This leaves out more than a few things about defamation under Kentucky Law (and the 1st Amendment). It leaves out that the statements need to be false statements of fact, for example. Statements of opinion cannot be defamatory. That seems, you know, kind of... important?

The judge then rejects the NY Times' citation of another case in the same circuit, saying that that was under Ohio law rather than Kentucky law. But that ruling was using standard 1st Amendment standards for defamation law that still apply in Kentucky. And the reasoning the judge gives makes no sense at all.

In Croce, a newspaper published an article that included unflattering allegations against the plaintiff, a university professor and cancer researcher. The Court held that, in “full context,” a “reasonable reader would interpret the article as a standard piece of investigative journalism” which simply reported “newsworthy allegations with appropriate qualifying language.”

That holding is inapplicable under the allegations of the Complaint here. Defendant published a statement by Phillips that was made after Sandmann had departed for home, a statement to which Sandmann had no opportunity to reply in real time. While Sandmann had such an opportunity later, and such evidence might be admissible to show lack of malice, it is not a defense to the defamatory meaning of Phillips’ original statement itself.

WHAT?!? That's not how defamation law works at all. The question of whether or not someone has the ability to "reply in real time" has nothing to do with the standards for defamation law. Notice that the judge here doesn't cite anything for claiming this. He just... says it. And, again the other case that the NY Times points to is exactly on point, whether it's talking about Kentucky or Ohio. The 1st Amendment still exists. The fact that Phillips said stuff after Sandmann went home is... totally and completely irrelevant.

Also, let's be clear here. This is a case about Phillips' statement that he made to the Washington Post, which were then repeated in the NY Times (attributed to the Post). If this case were against Phillips, you might be able to squint and kinda sorta, but not really, find a way to say that there's an argument here (again, no, not really). If this were the case against the Washington Post, again, you might be able to squint and see that, which is why the allowance for more discovery was made in the first place. But, how does Sandmann's inability to reply to the Washington Post quoting Phillips in real time have anything whatsoever to do with the question of whether or not the NY Times is liable for defamation? It doesn't.

The judge also rejects the Times' statute of limitations claim, which under Kentucky law is one year. The lawsuit was filed 14 months after the incident. The judge says that since Sandmann is a minor, the statute of limitations is effectively extended until he turns 18. The Times argues that at the very least, the statute of limitations should have started ticking when he filed the original lawsuit against the Washington Post, but again the judge just says "nope." Even though the NY Times pointed to previous rulings that agreed with their analysis of the statute of limitations the judge says that the procedural history in that other case was different (he doesn't explain how or why) and that he "does not believe" that the original case the Times point to would be upheld if it were appealed. Which... is a take.

Anyway, this does not mean that Sandmann has yet won. It just means that these cases can move forward. And that's dangerous for a few reasons. I'm not 100% sure, but it's possible that the media defendants won't be able appeal on this point (this gets beyond my knowledge of Kentucky civil procedure -- but some laws allow for "interlocutory appeal" in which you can appeal specific aspects of a ruling, while others want you to wait until the court makes a final ruling on the case before it can go up on appeal). If that's the case then appeals would have to wait until later in the case, after the case has gone on through more expensive stages -- and that means that many of the media companies (and their insurance companies) may feel a lot of pressure to just throw a bit of money at Sandmann to make the case go away for less than it will cost to go through to the next round.

The NY Times has a history of not caving in cases like this, recognizing that it has to set the standard, so I hope it continues fighting. But it would not surprise me to see some of the other media companies also do "confidential settlements" that many people will judge as some huge victory for Sandmann.

All in all this is a very, very, very odd ruling that does not fit with any other defamation case I've seen, appears to go against plenty of precedent and, most bizarrely, has the judge citing his own rulings in a different case that say the exact opposite of what he claims it says in this case.

The "rule of law" Administration is at it again. Ignoring the rule of law by ignoring applicable laws, the Administration decided to cozy up with law enforcement agencies while pretending to be serving the public. (h/t ProPublica)

Formed by executive order, the Presidential Commission on Law Enforcement and the Administration of Justice was formed by the DOJ. The Commission promised to tackle several important issues, including the handling of mental illnesses, substance abuse, and homelessness. It would supposedly seek input from education, employment, and mental health services to tackle these problems.

More problematically, the Commission thought it needed to address this perceived "problem:"

What is the cause of diminished respect for law enforcement and the laws they enforce, and how does it affect both police and public safety?

The answer would have been immediately apparent if the Commission had asked anyone else but law enforcement agencies to participate. But it didn't. And now a federal court has found that the Administration violated federal law by forming a one-sided commission unlikely to fairly address any of the issues in front of it. Here's how the court describes the President's new Commission en route to finding it broke the law. From the opinion [PDF]:

The Attorney General stressed the need to hear from “[a] diversity of backgrounds and perspectives” such as “community organizations, civic leadership, civil rights and victim’s rights organizations, criminal defense attorneys, academia, social service organizations, and other entities that regularly interact with American law enforcement.” Despite these stated goals, however, the Commission’s membership consists entirely of current and former law enforcement officials. No Commissioner has a criminal defense, civil rights, or community organization background. And Commission proceedings have been far from transparent. Especially in 2020, when racial justice and civil rights issues involving law enforcement have erupted across the nation, one may legitimately question whether it is sound policy to have a group with little diversity of experience examine, behind closed doors, the sensitive issues facing law enforcement and the criminal justice system in America today.

This one-sided panel does not comply with federal law. Nor does its closed-door meetings, which ignore transparency mandates. Here are the requirements of the law that governs the Administration's law enforcement commission:

Passed in 1972, FACA [Federal Advisory Committee Act] requires, among other things, that covered federal advisory committees be “fairly balanced” in the viewpoints represented, that meetings be open and publicly noticed, that a charter be prepared and filed, and that a designated federal officer be appointed to ensure compliance with FACA.

But that's not what happened. After saying some nice things about "diverse viewpoints," Attorney General Bill Barr stocked the commission with 18 former or current law enforcement officials. Barr then unilaterally decided this commission didn't need to comply with federal law.

Further, the memorandum noted, “[t]he Commission serves exclusively to advise the Attorney General and the President” and “is not intended to be subject to either the Federal Advisory Committee Act or Administrative Procedure Act.”

Another brief nod towards transparency was made by the Commission -- a nod that was made even briefer by the Commission shortly after it pretended to care about the public's opinion.

In February 2020, the Commission posted a notice on its website offering interested members of the public the opportunity to submit comments through May 31, 2020 regarding any aspect of the Commission’s work. But at some point between March 13 and March 28, the Commission shortened the comment window by two months, requiring all submissions by March 31, 2020, without posting notice in the Federal Register.

After a lengthy discussion of the government's arguments about whether or not this lawsuit can even be entertained by the court, much less FACA's applicability to its law enforcement commission, the court arrives at this conclusion:

There is no genuine dispute that the government has violated FACA’s transparency and public access requirements by holding closed hearings without timely notice in the Federal Register. And there is likewise no genuine dispute that the Commission has violated FACA’s oversight provisions by failing to file a charter for the Commission, 5 U.S.C. app. 2 § 9(c), and that Attorney General Barr has violated FACA by failing to assign a designated federal officer to the Commission to ensure compliance with FACA…

And the court says there's no dispute the composition of the Commission isn't "fairly balanced." This leads to the court's most damning assessment of the President's law enforcement committee.

The Commission’s function is to improve policing, including relations between law enforcement and the communities they protect. Yet the Commission does not include a single member who represents elements of those communities, rather than law enforcement. Thus, even employing a deferential review, the Court concludes that the Commission’s membership is not “fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee.” 5 U.S.C. app. 2 § 5(b)(2). Indeed, the Court is hard pressed to think of a starker example of non-compliance with FACA’s fair balance requirement than a commission charged with examining broad issues of policing in today’s America that is composed entirely of past and present law enforcement officials.

The court says nearly everything about the Commission must change. It must change its composition, supply sufficient advance notice for public comment, and otherwise comply with FACA. Until it can comply, it can't hold any more meetings. We'll see how serious the Administration is about improving the relationship between cops and communities. If the Commission decides to abide by the law and continue its work, maybe the Administration still cares about these issues. If it decides it would rather dump the Commission than comply with the law, we'll see how hollow its "rule of law" statements really are.

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For years, you may recall that we would write about the insane nature of forum shopping for patent trolls, in which the trolls would flock to the federal courts in East Texas. Going back nearly 15 years, we wrote about how East Texas courts became grand central for patent troll cases, leading to all sorts of sketchy behavior. There are a bunch of empty office buildings setup in small Texas cities (mainly Marshall and Tyler) just to "pretend" to have offices there. Companies engaged in many patent cases started to try to suck up to residents of those small cities, in case they might be on a jury. TiVo literally bought a "Grand Champion Steer" just weeks before a jury was set to rule on a massive TiVo trolling case. Samsung threw so much money at the local "Stagecoach Days" event that it was renamed "Samsung Stagecoach Days," and built a Samsung ice rink right next to the courthouse in Marshall.

For years, people pressured Congress to fix this mess, but instead, the Supreme Court finally stepped in, with the TC Heartland ruling, and said that the proper jurisdiction should be where defendants actually are incorporated. Of course, this seemed to have the reverse effect -- as companies no longer want to be in East Texas. Apple shut down its stores there to avoid the jurisdiction.

Of course, if you thought that the judges would go quietly, you'd be wrong. It's always felt like a few judges in East Texas loved the reputation they'd built up as being super friendly to patent trolls. For a while it was Judge T. John Ward. And when he left the bench (to become a patent lawyer, natch), Judge Rodney Gilstrap stepped into the gap he left. He even tried to ignore the Supreme Court's TC Heartland decision (though the Federal Circuit appeals court was not impressed).

However, as Patent Progress notes, there's a new judge vying to be at the top of the patent troll's Christmas list, and he's in West Texas. Judge Alan Albright, a former patent litigator, was appointed to the bench in 2018 -- and he literally went on a tour to convince companies to bring patent cases in his court:

U.S. District Judge Alan Albright and attorneys who predicted last year that Waco’s federal court would become a hotbed of patent and intellectual property litigation missed their prediction just a bit.

With Albright traveling the country drumming up business and patent attorneys spreading the word that Waco’s new federal judge, a longtime patent litigator, will provide the expertise to create an efficient and welcoming environment in Waco, the response in the past year actually exceeded those predictions.

Since Albright took office in September 2018, more than 250 patent cases have been filed in the federal Western District of Texas, which includes Waco. That total eclipses the number for the previous four years combined and has made the Western District among the busiest in the country for patent cases.

It's hard to read that and not think... that's fucked up. A judge should not be "travelling the country drumming up business." There's a reason that forum shopping is a bad idea -- and this is even worse: it's forum selling. As that article notes, more and more patent law firms are now setting up business in Waco, near Albright's court, and even the troll firms in East Texas are heading just a bit west:

Waco law firm Haley & Olson announced in March it was combining forces with Mann, Tindel and Thompson, an East Texas firm that specializes in patent litigation, to capitalize on the new focus of the Waco federal court.

That should be seen as a problem, but instead, it seems to be business as usual in the federal courts of Texas.

Two law professors have now come up with a new paper delving into this troubling trend, which kicks off with a pretty telling mocked up Craigslist ad, which they say "startlingly... accurately portrays what is happening right now in the U.S. District Court for the Western District of Texas."

The two professors -- J. Jonas Anderson and Paul Gugliuzza -- lay out the problems pretty starkly:

One judge, appointed to the court less than two years ago, has been advertising his district—through presentations to patent lawyers, comments to the media, procedures in his courtroom, and decisions in patent cases—as the place to file your patent infringement lawsuit. And he has succeeded. In 2018, the Western District received only 90 patent cases—a mere 2.5% of patent suits nationwide. In 2020, the Western District is on track to receive more than 800—the most of any district in the country. Importantly, these suits are overwhelmingly filed by so-called patent trolls—entities that don’t make any products or provide services but instead exist solely to enforce patents.

The centralization of patent cases before a single judge, acting entirely on his own to seek out patent litigation, is facilitated by the Western District’s case filing system, which allows plaintiffs to choose not just the court but the specific judge who will hear their case. These dynamics—a judge advertising for patent cases and plaintiffs shopping for that judge—undermine public confidence in the impartiality of the judiciary, make the court an uneven playing field for litigants, and facilitate the nuisance suits patent trolls favor.

As they note, it seems like an easy thing to fix if Congress had the will:

Two reforms would help solve this problem: first, district judges should—by law—be randomly assigned to cases and, second, venue in patent cases should be tied to geographic divisions within a judicial district, not just the district as a whole.

The article even details how in the midst of the pandemic, both Judge Albright and Judge Gilstrap appear to be competing to rush through as many patent cases as possible, in person, so that more trolls will file in their courts:

The COVID-19 pandemic has upended American life. Millions are unemployed. Many who still have jobs—grocery store workers, delivery drivers, healthcare providers—risk their lives every day. Those of us who are privileged have learned to work entirely from home; our biggest risk is a dancing child or stray pet wandering into the background of a Zoom meeting. COVID has disrupted the practice of law, too. Even the U.S. Supreme Court has yielded, holding oral arguments by telephone and broadcasting them live for the first time. The U.S. Court of Appeals for the Federal Circuit, which hears appeals of all patent cases nationwide, has likewise suspended in-person oral arguments until further notice.

But Judge Albright appears determined to forge ahead with patent litigation as usual. Judges in other patent-heavy district courts are, too. Though some judges have compromised and held patent proceedings on Zoom, Chief Judge Rodney Gilstrap of the Eastern District of Texas, who, until last year, heard more patent cases than any judge in the country, recently denied a defendant’s motion to delay an in-person jury trial slated to begin on August 3, quoting poet Robert Frost’s idiom that “the best way out is always through.” What is going on with these judges?

They are in the midst of a vigorous competition to attract patent cases to their courtrooms. As this article shows, Judge Albright is winning. And this court competition is not good for the patent system or the court system more broadly.

As the article notes, this forum selling is the unexpected flip side of historical forum shopping. And Judge Albright seems to have figured out how to sell his court like no judge before. One of the things he'll even do is let patent holders sue in his court in Waco, transfer the case to the more convenient court in Austin... but still have Judge Albright preside over the case. Here's a simple chart of how this has played out in practice:

And again, nearly all of those are going to a single judge. If you don't see that as a problem, well, then you're probably a patent troll. Judge Albright isn't particularly shy about this either:

Immediately upon his appointment as a district judge in 2018, Judge Albright went on a media blitz, letting everyone know that his court would welcome patent litigation. The Waco Tribune-Herald reported that Judge Albright “let it be known in no uncertain terms that he would like his Waco courtroom to become a hub for IP cases.” He attended dinners for patent litigators and patent owners to extoll the virtues of trying patent cases in Waco. Judge Albright stated that he took the position in Waco because he “‘thought it was the perfect place to try and establish a serious venue for sophisticated patent litigation.’” Most tellingly, he gave a presentation at the 2019 annual meeting of the American Intellectual Property Law Association titled, “Why You should File Your Next Patent Case Across the Street from the ‘Hey Sugar,’” referring to a candy store near his Waco courthouse.

You'd think a judge would recognize just how bad this looks, but I guess not.

As the paper details, Judge Albright is the only judge in Waco, so if you file there, you're guaranteed to get him, and he's made it clear that he'll personally handle all the details of patent cases, farming out the grunt work on other cases to magistrate judges:

Secure in the knowledge that patent cases filed in Waco will be heard by Judge Albright, patent plaintiffs are even more incentivized to file in Waco because of Judge Albright’s unique assignment orders to his magistrate judge. Judge Albright assigns all cases to his magistrate to handle all non-dispositive motions—except in patent, copyright, and certain habeas corpus cases. Thus, patent plaintiffs know that Judge Albright will be personally involved in every aspect of the litigation and won’t be distracted with other, non-patent cases on his docket. That level of attention from a district judge during all stages of litigation is exceedingly rare. Delaware, for example, heavily uses magistrates in patent cases. Even the Eastern District of Texas relies on magistrates to handle important motions and pre-trial hearings, including claim construction.

For plaintiffs, choosing the Waco Division could not be simpler. Plaintiffs simply select “Waco” from a drop-down menu of divisions on the Western District’s electronic case filing system and—voila!—the case is automatically assigned to Judge Albright.

The paper goes on to detail more and more and more crazy examples of just how blatant this all is -- and why it's so problematic. At a time when there is so much else going on, I recognize that this might not seem like a priority, but it's insane. A judge is literally shopping for cases -- cases in which he's hardly an unbiased observer, having been a patent litigator before being appointed to the bench. As we've discussed at great length over the years, the closer judges are to patent lawyers, the more likely they are to support patent trolling, and not see the problems with overly broad patents, or patent trolls shaking down actual innovators.

The paper also details how Judge Albright's practices aid patent trolls (which may explain why 85% of these patent cases filed in his court are from trolls). He pushes the cases to move faster, which puts much more pressure on companies to settle to avoid the expense of litigation. And, Judge Albright is much faster than even Judge Gilstrap, whose court in Marshall was regularly called the "rocket docket" for its speed in handling patent troll cases.

And what about that TC Heartland decision that finally started pressuring Gilstrap in East Texas to transfer cases to their proper venue?

Since taking the bench, Judge Albright has likewise staunchly refused to transfer cases out of the Western District. As of July 7, 2020, he has decided thirteen motions seeking transfer away from the Western District under § 1404(a); he has denied eleven. In fact, in a recent order, Judge Albright effectively told Apple—which has been sued at least ten times in cases assigned to Judge Albright and regularly seeks to have those cases moved to the Northern District of California—to stop filing transfer motions.

They do note that the Federal Circuit recently ordered Albright to transfer one of his cases, involving Adobe, and threw some shade at his current failure to regularly transfer cases. Hopefully that means it starts pushing back on him more often.

Again, there's a lot more in the paper, and it's all crazy that this is allowed in a federal court. Congress has many things on its plate, but it should do something to fix this jurisdiction selling by Judge Albright.

Over the last few decades, the U.S. government (more accurately the industries that lobby it) have made it abundantly clear most aren't keen on even the most basic of privacy law for the internet era. Sure, companies like Facebook and AT&T say they want a privacy law, but they don't. Not really. Even the most basic privacy laws would educate consumers and empower them to more easily opt out of tracking and behavioral ads, costing countless sectors billions of dollars. What they want, if we have to have a law at all, is a law their lawyers write, so riddled with loopholes and caveats as to legalize dodgy behavior, not ban it.

Since these bogus solutions don't sell well with consumer advocates and many privacy experts, we routinely hit gridlock. The result: the U.S. has no meaningful federal privacy law for the internet era decades after the fact. And, in the rare instances where U.S. leaders somehow manage to shake off lobbying influence and their own incompetence to pass even modest rules (like the FCC's dead broadband privacy rules), they're quickly dismantled by a Congress slathered in campaign contributions from multiple, coordinating industries.

This federal, lobbyist-induced apathy to passing any real federal privacy solutions has resulted in states rushing to fill the void. Often poorly. California, for example, has been lauded for passing one of the most comprehensive privacy solutions in the nation (which isn't saying much) in the form of the California Consumer Privacy Act (CCPA). The problem, as we've noted previously, is that it was a rushed mess cobbled together in a mad dash. Sloppy wording means the bill had a huge share of problems, which Mike has outlined previously. For a subject this complicated, a "mad dash" approach was never likely to work out that well.

Fast forward to this week, when a new report by Consumer Reports found the bill (surprise!) isn't really succeeding at its primary goal: clearly informing consumers what's going on in terms of access to their data, and making it easier to opt out of data collection and sale. This most basic provision also isn't being meaningfully enforced in any substantive way. The organization spent much of May testing numerous websites and found that actually trying to opt out of data collection and sales was either impossible, or very difficult to confirm with the companies in question:

Consumers struggled to locate the required links to opt out of the sale of their information. For 42.5% of sites tested, at least one of three testers was unable to find a DNS link. All three volunteers failed to find a “Do Not Sell” link on 12.6% of sites, and in several other cases one or two of three testers were unable to locate a link.

At least 14% of the time, burdensome or broken DNS processes prevented consumers from exercising their rights under the CCPA.

Consumers often didn’t know if their opt-out request was successful. Neither the CCPA nor the CCPA rules require companies to notify consumers when their request has been honored. As a result, about 46% of the time, consumers were left waiting or unsure about the status of their request. About 52% of the time, the tester was “somewhat dissatisfied” or “very dissatisfied” with opt-out processes.

Cool. The full report (pdf) is worth a read, and also found that data brokers fairly consistently violated the law without any penalty. One used data gleaned from opting out to actually sign the consumer up for additional marketing. Some brokers demanded data that consumers eager to opt-out of data monetization and tracking wisely weren't keen on providing to often-dodgy data brokers (like copies of government IDs). Again, none of these problems should be particularly surprising for a bill numerous experts say was rushed and undercooked, attempting to fix a problem that's global and massive.

Consumer Reports was quick to note that some of these problems should be fixed by California Proposition 24, which will be voted on in November. Though still, questions remain as to whether California has the competency to pull this off given the scale of the problem we're talking about. Ideally, it would be best to have this problem tackled by a cohesive, federal level law and actually staffed and funded privacy regulators at places like the FTC. But most efforts to accomplish that are routinely undermined by a coalition of industries (and the lawmakers paid to love them) which would prefer consumers remain opted in and befuddled by fine print.

But with major privacy scandals occurring weekly, doing nothing is starting to get harder to pull off. So instead, we're starting to see a laundry list of federal solutions by bad faith actors whose top interest isn't consumer protection, but bogus laws designed to pre-empt tougher, better, consensus-driven solutions on both the state and federal level. As such while California's proposal is a (hopefully fixable) mess, it's surprising the bill was even created at all in an environment where doing nothing or doing nothing but dressing it up as something is the preferred outcome for a large number of privacy-violating giants.