LAW PUNDIT Friday, March 05, 2010 3/05/2010 11:58:00 PM [Home]

UPDATE, MARCH 9, 2010:

Dear LawPundit Readers,

We are working on a way to bring our postings to the LawPundit blog back to these pages, so, for now, please regard this as a temporary change.

For the moment, through no fault of ours, the only RSS feed that works for LawPundit is

http://feeds.feedburner.com/blogspot/kUbm

That is the feed for our original mirror site at http://lawpundit.blogspot.com, where this blog continues to post.

Our migration of LawPundit from LawPundit.com was forced by Google's Blogger who are discontinuing FTP publishing for all the original Blogger users, forcing migration of LawPundit at lawpundit.com to http://lawpunditblog.blogspot.com. We have an opinion about that, but it is not printable. Suffice it to say, ever since the current team at Google took over Blogger from PyraLabs, it has been pretty much a disaster.

In the course of the migration, Google's Blogger team posted to this blog stating that you - our readers - should use the feed
http://www.lawpundit.com/blog/atom.xml,
but we have discovered since that blog migration that the suggested feed does NOT update beyond this same last posting. We have been able to update the text of that posting through an arduous process through our host server.

We will keep you up to date on changes.

For now please use the feed http://feeds.feedburner.com/blogspot/kUbm.

Thank you.

Andis Kaulins at LawPundit

The material below - posted by the Google Blogger team - is outdated!!

This blog has moved

This blog is now located at http://lawpunditblog.blogspot.com/.
You will be automatically redirected in 30 seconds, or you may click here.

For feed subscribers, please update your feed subscriptions to
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^Permalink : Andis Kaulins : 3/05/2010 11:58:00 PM

LAW PUNDIT 3/05/2010 11:15:00 PM [Home] [Print]

LawPundit Migration to a Google Blogger Custom Domain to be Attempted Today : If it Fails You Will Have to Shift Your Reading to LawPundit at Blogspot

We are now starting our migration of the LawPundit blog to status as a Custom Domain at Google's Blogger. We do this unwillingly, however, for as we wrote previously at LawPundit, Google and Blogger will no longer support FTP publishing of blogs - they have now set a deadline of May 1, 2010, even though the original PyraLabs Blogger, before its purchase by Google, in fact started out with FTP blogging ONLY. Time marches on, I guess.

If the migration works, you should notice no change in anything.

If anything should go wrong in this migration process, however, LawPundit at this address will become unreachable through no fault of ours and you should then shift your links and subscriptions to the LawPundit mirror at Blogger's blogspot.com which we have thankfully maintained over the years at LawPundit (Blog II).

We will try to do the Google Blogger "automated migration" today.

^Permalink : Andis Kaulins : 3/05/2010 11:15:00 PM

LAW PUNDIT 3/05/2010 10:56:00 PM [Home] [Print]

The Antithesis of Justice : Criminal Convictions in Italy of Google Execs Point to Flaws in European Union (EU) Law

We posted about this absurd case previously at LawPundit.

Struan Robertson, editor of out-law.com, writes on March 3, 2010 in Google convictions reveal two flaws in EU law, not just Italian law inter alia as follows regarding the inexcusable criminal convictions of Google execs - made in absentia in Italy - for alleged untimely takedown of criminally offending video material posted online by youthful criminals in Italy and totally unknown to Google execs at the time for which their criminal conviction for non-action applies:

"Web hosts are unfairly exposed all across the EU and two legal changes are needed....

Problem 1: An unreasonable caveat to safe harbour....

Problem 2: We don't know enough about notice and takedown...."

Read the whole posting here.

Robertson in our opinion in focusing on the ill-drafted EU laws and on the shambles of law in Italy is much too lax with the misguided officials in Italy and with the responsible lawmakers in the European Union, all of whom are much more directly at fault than Google for the appearance of the offending video.

Why have government officials in Italy and the EU not instituted effective procedures in their own law enforcement systems to timely catch criminal postings in their areas of jurisdiction - AS IS THEIR JOB, rather than putting the entire onus of "policing" on Google or other online providers. Why should Google be more effective in catching criminals than THE government institutions are - it is not Google's line of business at all.

Everyone always wants to put the blame on the other guy, rather than honestly shouldering their true part of the blame themselves. Policing is a responsibility of government institutions and not of Google. Maybe nations and communities should not have 90% of their officers playing cops and robbers with normal citizens for minor things like traffic violations etc. - and should direct more of the attention of their own State employees to combatting real crime. Now - THAT would be a major change.

If the purpose of Italy's convictions is to seek scapegoats, which the guilty often do to ward culpability away from themselves, it would be equally logical to issue criminal convictions for all those in Italy and the EU responsible for what happened in the instant video case, and we would not stop at judges, legislators and officials, but would also include the teachers and parents of the criminals, who were unable to keep the offenders from doing their offensive acts. Google is at the end of a very long chain of societal and legal blunders and errors which create criminal offenders to begin with.

As it now stands, the people FURTHEST REMOVED from the actual criminal video activity have been held criminally responsible rather than those CLOSEST to it. How convenient for all of the institutions involved, whose members via overinflated salaries are all stuffing their pockets with taxpayer monies but of course disclaiming any responsibility themselves for the state of affairs in their own jurisdiction. Some distant executive from a far-away jurisdiction will be picked to shoulder the blame - a blame which ITALY and the EU rightly should share among themselves.

That is not a miscarriage of justice. It is the ANTITHESIS of justice.

^Permalink : Andis Kaulins : 3/05/2010 10:56:00 PM

LAW PUNDIT 3/05/2010 06:15:00 PM [Home] [Print]

Mobile Patent Lawsuits Increasing Dramatically

Nick Bilton at the New York Times Bits Blog discusses the Explosion of Mobile Patent Lawsuits in the last year, writing inter alia:

"On Tuesday when I spoke with Eric Von Hippel, a professor of technological innovation at M.I.T.’s Sloan School of Management. He pointed out that patent lawsuits had turned particularly unpleasant lately as a result of companies that only buy and sell patents."

Read the whole thing here.

Hat tip to TechDirt.

This was all foreseeable years ago and we wrote about it. Now, you have a gigantic - then avoidable - problem at your doorstep which is no longer avoidable.

^Permalink : Andis Kaulins : 3/05/2010 06:15:00 PM

LAW PUNDIT Thursday, March 04, 2010 3/04/2010 11:01:00 PM [Home] [Print]

New's New News! Intellectual Property Watch reports Release of New Senate Patent Reform Bill Details

Intellectual Property Watch reports that New Senate Patent Reform Bill Details Released

William New writes ("New's new news"):

"United States Senate Judiciary Committee bipartisan leaders today released details of much-anticipated compromise legislation aimed at reform of US patent laws. The new bill ostensibly makes significant steps toward resolving longstanding differences in legislative efforts to modernise US law for patent quality and efficiency, and make it more compatible with international laws.

The new bill, referred to as the managers’ amendment, is being touted as providing a critical boost to innovation. The bill must go to the full Senate for a vote, and must be passed in the House of Representatives as well.

The senators’ press release is available here.

The proposed amendment, over 100 pages, is available here [pdf]."

Read "New's New News" here in entirety.

^Permalink : Andis Kaulins : 3/04/2010 11:01:00 PM

LAW PUNDIT 3/04/2010 06:20:00 PM [Home] [Print]

German Nationals Forming a UK Company

German Nationals Forming a UK Company

Forming a private limited company in the UK is a simple process and has a low set up cost. If you are intending to trade in the UK, it appears to your customers and suppliers as though they are dealing with a UK based entity.

As the shareholder and/or director of the company you can remain ordinarily resident in Germany. There are no residency requirements for the first subscribers, subsequent shareholders or directors of an English private limited company and directors and secretaries of private limited companies are not required to have any particular qualifications.

A private limited company can be formed with one director (who must be at least 16 years old) and one shareholder and there is no minimum or maximum share capital requirement (public companies do have capital requirements).

UK companies are required to have a registered office in the UK to act as a contact point for the people that the company deals with and to which official notifications can be sent. However, it is relatively cheap and painless to engage a registered office service provider to give you a UK address and to forward post to you. You can even use this address as the service address for directors and the residential address of the directors can remain private.

There are certain minimum maintenance requirements for a UK private company. It must file an annual return to Companies House setting out the current directors, secretary (if it has one) and its current capital and shareholder position, although this is a fairly simple task. The company will have to keep accounts based on requirements prescribed by UK legislation and to file these with Companies House (although the extent of the filing is relaxed for small companies). The company has to keep certain registers such as directors, secretary, shareholders and charges. These registers must be available for inspection at its registered office.

Finally it is possible for the company to be incorporated and registered in the UK but to be resident for tax purposes in Germany under the relevant double tax treaty. You should seek specific advice on this from a tax adviser if this is your aim.

You may need an apostille certificate if you need to present the company’s UK documents in Germany or other country that recognises the Hague Convention. This will usually avoid a German authority questioning the authenticity of the UK documents. Again this can be arranged at fairly minimal cost if you find it necessary.

In summary, forming a company in the UK is a painless, low cost process. There are also no residence requirements for the officers or shareholders of the company, and there is no minimum share capital requirement.

Jamie Hunt, Legal Clarity Ltd

The information provided in this article is intended as a general guide only. It is not exhaustive or tailored to your individual circumstances.

^Permalink : Andis Kaulins : 3/04/2010 06:20:00 PM

LAW PUNDIT 3/04/2010 01:21:00 AM [Home] [Print]

So Where’s Your Originalism Now, Justice Scalia? - Law Blog - WSJ

So Where’s Your Originalism Now, Justice Scalia? - Law Blog - WSJ

^Permalink : Andis Kaulins : 3/04/2010 01:21:00 AM

LAW PUNDIT 3/04/2010 01:08:00 AM [Home] [Print]

Car and Driver and Professor Bainbridge write that The Problem is the Driver, not the Pedal

Professor Bainbridge writes that The Problem is the Driver, not the Pedal and quotes Car and Driver:

"Every man, woman, and child in the U.S. has approximately a one-in-8000 chance of perishing in a car accident every year. Over a decade, that's about one in 800. "

If the driver is the problem and that will mostly be the case, perhaps it is time that everyone, including car manufacturers pay increasing attention to safety rather than to speed and acceleration in their design of the world's motor vehicles.

^Permalink : Andis Kaulins : 3/04/2010 01:08:00 AM

LAW PUNDIT 3/04/2010 12:45:00 AM [Home] [Print]

Utah's Matheson Nominated as a Judge for the U.S. Court of Appeals 10th Circuit

Former Law Dean, Gubernatorial Candidate Picked for 10th Circuit - The BLT: The Blog of Legal Times

"Scott Matheson Jr. [Stanford, Rhodes Scholar, Yale Law]", a former law dean at the University of Utah and the runner-up in that state's 2004 race for governor, has been nominated for the U.S. Court of Appeals for the 10th Circuit, the White House said today."

^Permalink : Andis Kaulins : 3/04/2010 12:45:00 AM

LAW PUNDIT Wednesday, March 03, 2010 3/03/2010 03:50:00 PM [Home] [Print]

Are POTUS Obama's Winning Ways Being Sidetracked by the Predominantly Left-of-Center Ideology of His Staff?

Jonah Goldberg at the Los Angeles Times has a useful scribble on the Obama Presidency which hits upon two key points (winning and transformation - highlighted below).

At the extreme, there are two kinds of people in this world: those who want to be right, and those who want to win. We have always gauged Obama to be a winner who does what it takes to win and is willing to CHANGE, as required, if he sees that what he is doing is not winning. A leader must be as transformative as the change that he requires from the citizens. How else do you get elected as POTUS - President of the United States - as a black man (well, half-black)? You have to be SMART and VERY ADAPTABLE.

Accordingly, we were somewhat taken aback by this LATimes.com article as Goldberg writes that Obama's winning ways may be being sidetracked by the left-of-center ideology of the people with whom he is surrounded. If true, an ideological foundation rather than a winning philosophy for Obama would be a great mistake. To quote Goldberg:

"[Dana] Milbank wrote a column Feb. 21 arguing that all the president's problems ... can be attributed to a single factor ... because he didn't follow his chief of staff's advice on crucial matters" ... referring to Rahm Emanuel...."

If reports are to be believed, Emanuel wanted Obama to be less ambitious ideologically but more aggressive politically. Emanuel likes winning, and so he thinks the president should pick battles he can win. Emanuel opposed the idea of shutting down Guantanamo Bay within a year. He argued that Obama should have gone for a smaller, more digestible healthcare bill that expanded coverage and attracted bipartisan support. He offered similar advice on a cap-and-trade bill. But on these and other issues, Obama opted to follow the lead of ideologically committed House liberals.

[Obama] wants to be 'transformative'.... But such a transformation requires an electorate capable of being transformed. Obama and his acolytes misread the public, thinking voters were as worshipful as they were."

As a political centrist and as supporter of "Realpolitik", we hope that the reality is otherwise and that winning is still Obama's dominant theme.

Hat tip to CaryGEE.

^Permalink : Andis Kaulins : 3/03/2010 03:50:00 PM

LAW PUNDIT 3/03/2010 02:48:00 AM [Home] [Print]

You've Got to Sleep Somewhere: Not Heartbreak but Harvard Hotel?

Harvard Looks to Hotels - Developments - WSJ

^Permalink : Andis Kaulins : 3/03/2010 02:48:00 AM

LAW PUNDIT 3/03/2010 02:39:00 AM [Home] [Print]

Supreme Court lets stand order to remove Ten Commandments monument / The Christian Science Monitor - CSMonitor.com

Supreme Court lets stand order to remove Ten Commandments monument / The Christian Science Monitor - CSMonitor.com

"The US Supreme Court declined on Monday to take up a dispute over the placement of a Ten Commandments monument on the lawn outside a county courthouse in Oklahoma.

The justices dismissed the case in a one-line order without comment.

The action lets stand a ruling by a federal appeals court and clears the way for the display to be removed from public property....

A panel of the Tenth US Circuit Court of Appeals ... ruled that the display was an endorsement of religion and thus violated the First Amendment’s prohibition on excessive church-state entanglement. "

The case is clear as a matter of law. If people would put up a monument which listed the Bill of Rights of the U.S. Constitution, for example, that would be fine, but putting up religious rules on state property - from any religion - is a violation of the Constitutional requirement that Church and State be separate. See Separation of church and state in the United States.

^Permalink : Andis Kaulins : 3/03/2010 02:39:00 AM

LAW PUNDIT Tuesday, March 02, 2010 3/02/2010 12:30:00 AM [Home] [Print]

Don't Worry About the U.S. Economy, It is in the Right Hands: The Talents of the Jews and Jewish Contributions to the World

So, you worry about the U.S. economy? I don't. The Obama Administration has seen to it that the best economic brains available - are available. Obama is a smart man. His economic team is very heavy on Jewish members.

The Tel Aviv Cluster by David Brooks at the New York Times focuses on some facts about the Jews that should be repeated regularly by mainstream media to its readers, rather than concentrating on political problems in the Middle East that are to a large part an indirect result of past failings by the West itself in permitting the Holocaust to happen and in not putting down their foot against totalitarianism when they should have done so, rather than waiting for the catastrophe of WWII to happen. We may, today, be in a similar situation.

Brooks states those facts about the Jews as follows:

"Jews are a famously accomplished group. They make up 0.2 percent of the world population, but 54 percent of the world chess champions, 27 percent of the Nobel physics laureates and 31 percent of the medicine laureates.

Jews make up 2 percent of the U.S. population, but 21 percent of the Ivy League student bodies, 26 percent of the Kennedy Center honorees, 37 percent of the Academy Award-winning directors, 38 percent of those on a recent Business Week list of leading philanthropists, 51 percent of the Pulitzer Prize winners for nonfiction....

The most resourceful Israelis are going into technology and commerce, not politics. This has had a desultory effect on the nation’s public life, but an invigorating one on its economy.

Tel Aviv has become one of the world’s foremost entrepreneurial hot spots. Israel has more high-tech start-ups per capita than any other nation on earth, by far. It leads the world in civilian research-and-development spending per capita. It ranks second behind the U.S. in the number of companies listed on the Nasdaq. Israel, with seven million people, attracts as much venture capital as France and Germany combined."

I have often stated that half of anti-Semitism is rooted in ignorance, and the other half in envy, and that is still my opinion today. A man of equal intellect would tend to view the Jews as equals. I myself am not Jewish, but if other peoples on our planet had equal talents, the world would be a much more civilized place.

^Permalink : Andis Kaulins : 3/02/2010 12:30:00 AM

LAW PUNDIT 3/02/2010 12:05:00 AM [Home] [Print]

Where are the Graphic Images for U.S. Patent 7669123 ? Why is the Technology of Image Viewing at the USPTO Stuck in the Stone Age ?

If you have tried to view the USPTO online graphic images for U.S. Patent 7669123 without success, you most likely do not have a graphic viewer that can display TIFF files using ITU T.6 or CCITT Group 4 (G4) compression. Who does have such software? Practically no one.

One institution of domestic government that is sorely in need of implementation of the U.S. President Barack Obama campaign promise of "change" is the United States Patent and Trademark Office (USPTO) - an inexcusably antiquated operation that has literally been left in the proverbial dust of foreseeable innovation by the fast pace of the modern digital era.

To show just how backward the USPTO is, they are still unable to unify a patent into ONE document - even if split into multiple modules in the case of larger documents, preferring rather to stick to a hopelessly outdated format that keeps the text of the patent separate from the images that accompany the patent, making the viewing of patents an enormously outdated chore for anyone involved in the patent business. We face the same problem at Yahoo Groups too, as Yahoo is another outfit populated by Rip-Van-Winkles. The USPTO argument that their way is the "patent standard" around the world by no means exculpates the patent offices for this glitch but rather proves that those patent offices are all about 20 years behind the times.

Worse, in what amounts to a technological scandal, the special TIFF format used by the USPTO is not geared to normal state-of-the-art graphic viewing programs used by everyone - that would be too simple, so that the average user is forced to buy programs to view the special USPTO patent graphic format - there being only one, very poor, free viewing program (AlternaTIFF) and one cripple-ware program (interneTIFF) that did not install on our system at all. Are patents really "of, by and for the people"? Nah. Only for the select few.

Brian, commenting at Nipper's The Invent Blog writes:

"I can’t understand why the USPTO uses a tiff format rather than a pdf format. I’ve gotten to where I rarely ever view images on the USPTO website anymore. Instead I either pull up the patent on Google’s patent search site or download the pdf from somewhere like pat2pdf.org."

The user interface of AlternaTIFF is confined and cramped for some reason known only to its programmers to the left side of 1/3 of our 22-inch screen in a non-legible size and any sensible use of those images in magnification mode is an insult to digital intelligence.

Both of the aforementioned TIFF viewer programs are listed by the USPTO as having been tested on IE and Netscape, a browser discontinued two years ago, and AlternaTIFF has been tested on Opera. Someone might inform the USPTO that Mozilla Firefox is the second most popular browser in the world today and is regarded by many savvy observers to be the best browser available, used especially by the tech community in great numbers. That there are dozens of other browsers out there (Chrome, anyone?) using standard graphic programs and viewers with great success is a piece of information that someone should pass on to the USPTO as well. That an institution in America responsible for patents is itself a Model-T Ford as far as tech status is concerned merely verifies the incompetence that seems to run rampant in the top echelons of this institution.

As the USPTO itself writes:

"PTO's full-page images, nearly four terabytes overall, are stored and delivered at full 300 dots per inch (d.p.i.) resolution in an image file format called "TIFF," using CCITT Group 4 compression.... Unfortunately, due to the volume of the image data, available funding, and other technical considerations, PTO cannot convert these images to a format more popular on the Web either permanently or by converting on-the-fly as they are delivered. [ - comment by LawPundit: excuses, excuses. The USPTO is YEARS behind the times.]

As a result, you must install and use a browser plug-in.... An alternative method is to use third-party software or services to view these images either directly or after conversion to another format....

The plug-in you use cannot be just any TIFF image plug-in. It must be able to specifically display TIFF files using ITU T.6 or CCITT Group 4 (G4) compression.

The only free, unlimited time TIFF plug-ins offering full-size, unimpeded patent viewing and printing unimpeded by any advertising on Windows® x86 PCs of which we are aware are:

* AlternaTIFF: http://www.alternatiff.com/ (tested: IE, Netscape, Opera)
* interneTIFF: http://www.internetiff.com/ (tested: IE, Netscape)

For the Apple Macintosh®, Apple's freely distributed Quicktime version 4.1 or later works with our images for pre-Safari Macintosh, but does not provide direct printing capability.... [LawPundit: Gee, our Quicktime is currently in version 7.]

For Linux®, a plug-in called "Plugger" works nicely with Netscape Communicator®....

PTO cannot and will not provide direct user support for TIFF image display or printing beyond the provision of hyperlinks to known suitable free TIFF browser plug-ins....

Full-page images can be accessed from each patent's full-text display by clicking on the [Images] button at the top of the patent full-text display page. If you have a properly installed G4 TIFF image viewer or plug-in, this will bring up the full-page image of the first page of the patent along with navigation buttons for retrieving the other pages of the document. These buttons include buttons for the identifiable sections of each patent: Front Page, Drawings, Specifications, Claims, Certificates of Correction (if any), and Reexaminations (if any). [LawPundit comment: The forward and back arrows in the menu of AlternaTIFF do not to function in the version we got to run on our PC - you have to use the column menu left. A software interface out of the Stone Age.]

* Patent images must be retrieved from the database one page at a time. This is necessary since patents can be as long as 5,000 pages, and the resources required to allow downloading such "jumbo" patents are not available. Users employing third-party software which downloads multiple pages of a patent at once may find this practice subjects them to denial of access to the databases if they exceed PTO's maximum allowable activity levels. [LawPundit, commenting while falling over laughing. A denial of access for using newer technology? Unbelievable. One page at a time for patents as long as 5000 pages? And these people claim to have the competence to issue patents? Not in our book.]

* Successful printing of patent images is entirely dependent on the user's browser and image viewer software. PTO does not provide support for printing problems. We will suggest, however, based on our experience, that with most image viewers, images may best be printed using the plug-in's print button rather than the browser's print function." [LawPundit comment: Based on what we see, the USPTO should not be giving anybody ANY advice, but should rather be opening their ears TO TAKE ADVICE from the literally millions of people on this planet who appear to be more savvy about these things than they are.]

If you, as a normal web user, now download AlternaTIFF, you can view patent images only after you have installed the program as an add-on in your browser. Then you can look at the images that accompany U.S. Patent 7669123 - one at a time of course - and in a format that will make your hair stand on end.

Do we need the USPTO? Not the one that presently exists.

^Permalink : Andis Kaulins : 3/02/2010 12:05:00 AM

LAW PUNDIT Monday, March 01, 2010 3/01/2010 01:27:00 PM [Home] [Print]

Should the Patent System Be Totally Revamped? Yes, Of Course. Constitutions (and their provisions) are Like Restaurants : Here Today, Gone Tomorrow

Should the world patent laws be changed in their foundation? Should we stop issuing patents for methods and for software? You better believe it.

In this regard, a posting by Mike Dorf is instructive. Our fundamental laws CAN be changed:

At Dorf on Law: Constitutions and Restaurants

Mike Dorf writes:

"[I]ssues of constitutional law are never fully settled, because they are always open to the possibility of re-examination."

Is that true? And why is that important? Who says that it is desirable that an issue of constitutional law be fully settled? And if not fully settled, is the "possibility of re-examination" the actual reason for this uncertainty, or is the actual reason to be found in the adaptive purpose of constitutions - in their role as the foundations of government - and thus in their need to adjust their mandates to changing times. A good example here would be the U.S. Constitution and the constitutional extension of the right to vote to minorities and to women. Humans drive social change and man's laws merely adjust to and reflect that change.

Further, Dorf writes:

"As Tom Ginsburg et al report in a recent paper, the average lifespan of a national constitution is 17 years. Constitutions, it seems, are like restaurants: Most new ones fail."

Is there anything wrong with that argument? Is the average lifespan of constitutions really so short, or is the problem here that governments, especially in developing countries, are short-lived? Can a constitution really fail, or is the actual failure involved one of human application of constitutional dictates? Or is the failure of constitutions in fact to be traced to their failure to keep up with the times?

To what degree has the U.S. Constitution, for example, become out of date? especially on the example of its patent provision? Maybe we should strike that clause entirely as having very little relevance to the way that the economy of the modern world is or should be run.

^Permalink : Andis Kaulins : 3/01/2010 01:27:00 PM

....LawPundit

German Nationals Forming a UK Company