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Dear YLS Member:
I am pleased to present to you the March issue of Electronically In-Touch. In this issue, you will find:
Thank you to the many young lawyers who submitted content for this issue. We are impressed by the quality of your submissions, and appreciate the time, effort, and energy that you put into your articles-especially when your time is limited and often not your own.
For those of you interested in sharing your ideas, advice, tips, and/or content submissions, please send them to us at firstname.lastname@example.org for inclusion in the newsletter. Electronically In-Touch is a monthly publication. The deadline for submissions is the 10th of the month.
We hope that you enjoy the March issue and look forward to staying In-Touch...
By Michael Donohue, Esq.*
The Digital Millennium Copyright Act (17 U.S.C. §1201 et seq) (hereinafter DMCA or the Act) was designed to implement two 1996 World Intellectual Property Organization treaties and address additional copyright related issues in the U.S. Signed into law by President Clinton in 1998 after a two year review, the DMCA provides a new level of often newsworthy copyright protection to digital material. In particular, the efforts made by some large corporations to protect their digital products have provided for some interesting case law and news reports.
In essence, the
DMCA protects digital material and prohibits the circumvention of
protection measures designed to limit access to material (anti-piracy
software or devices) established by the copyright holder. A number of
exemptions exist that deserve mention: nonprofit libraries and
educational institutions; law enforcement, intelligence, and other
government activities; reverse engineering; encryption research;
protection of minors; protection of personal privacy; and security
testing. (For more on these exemptions see 17 U.S.C. 1201 (d) et
International Inc., v. Static Control Components, Inc. 378 F.3d 522
(6th Cir. 2004)
Static Control Components (SCC) began selling microchips to third party cartridge re-manufacturers that would allow discount cartridges to operate despite being refilled by someone other than Lexmark. Besides the authorization code, the SCC microchip contained an identical copy of Lexmark’s Toner Loading Program.
Lexmark sued under the DMCA (and copyright statute 17 U.S.C. 106), arguing that SCC was selling a product that circumvents access controls on its Printer Engine Program. The District Court agreed and granted a preliminary injunction. On appeal, the Court of Appeals saw things differently – taking note of the DMCA’s definition, specifically the section that states: a “technological measure ‘effectively controls access to a work’ if the measure . . . requires the application of information, or a process . . . with the authority of the copyright owner, to gain access to the work.” (17 U.S.C. 1201 (a)(3)(B)). Where the District Court found that controlling access meant an inability to use the printer programs (translating into an operable printer), the Court of Appeals found that the authorization code contained in the toner cartridges did not control access to the Printer Engine Program. Any consumer could purchase a Lexmark printer and have “access” to the program contained in the printer’s memory without having to side-step a security device. While the Lexmark authorization sequence contained on the SCC microchips did prevent the printer from not working, it did not prevent someone from obtaining or making use of “the literal elements” of the Printer Engine Program. Under this reasoning the DMCA did not apply because the program sat unprotected in the printer’s memory and could be retrieved by anyone. The Court went on to state that the DMCA not only requires the technological measure to control access to the copyrighted work, but that it must do so effectively; leaving, the authorization code unprotected in the printers memory was not an effective means of protection. In the end, there was nothing that had to be circumvented to gain access to the Printer Engine Program. The decision was vacated and remanded.
Sony BMG and Digital Rights Management
In late 2005, a controversy began over software Sony was including on some of the audio CDs it distributed. Certain CDs contained one of two programs, SunnComm’s MediaMax or First4Internet’s Extreme Copy Protection (XCP). Both programs act as a form of Digital Rights Management and were designed to protect unauthorized reproduction of the digital material (songs) on the album by limiting the number of copies a user could make, and prohibiting the songs from being transferred to certain portable devices. Once a consumer placed one of these CDs in their computer, they would be prompted with an End User License Agreement (EULA) and a program would be installed on their PC. Concern arose over the way the way the XCP program was acting under the covers.
The XCP program would act as a “rootkit,” hiding its files and activities from the user, and potentially exposing the computer to a host of viruses that would be hidden from the user. The United States Computer Emergency Readiness Team (US CERT) acknowledged the XCP program as a security threat for this very reason. To complicate matters, one of the uninstall methods would direct a user to a Sony BMG webpage that would allow an “ActiveX control” to be installed that could open a computer to further attacks.
Eventually, Sony stopped manufacturing CDs with the XCP software and recalled any unsold XCP CDs from retailers. As part of a settlement agreement, customers who used or owned a XCP disk were entitled to receive $7.50 plus the ability to download an album off the internet at no charge, or forgo the $7.50 and download three free albums.
Comparing the Sony situation to the Lexmark case, it becomes apparent that the technological means Sony took to protect its digital material were more “enthusiastic.” The decision to hide the XCP program to ward off anti-piracy software, while effective at protecting copyright infringement, created a score of privacy and security issues, as opposed to the Lexmark program that was freely available on the printer and resulted in several copies. These are clearly two very polar incidences of the DMCA at work and there are a whole score of others available on Lexis or Westlaw. There is, however, a good chance that you might be able to find some in your newspaper.
* Michael Donohue is a Postgraduate Fellow in Government Law and Policy at the Government Law Center of Albany Law School in Albany, New York.Forced Marriage as a Basis for Asylum: Gao v. Gonzales Recognizes Persecution Based on Member of a Social Group Consisting of Women Sold Into Marriage Where Forced Marriages are Considered Valid and Enforceable
By Vanessa M.G. von Struensee, Esq.*
On March 3, 2006, the Second Circuit Court of Appeals granted asylum to a young woman from China who fled a forced marriage. Gao v. Gonzales, No. 04-1874-ag (2d. Cir 2006) available at http://www.ca2.uscourts.gov/. It is the first federal appeals court opinion addressing the issue of forced marriage as a basis for asylum.
In footnote 3, the opinion cites to and discusses the position taken by the Department of Homeland Security in its brief in the Rodi Alvarado case. “We also note that the Department of Homeland Security (“DHS”) has recently taken a similar stance in Matter of R-A-. Initially, the BIA held, reversing an IJ, that a Guatemalan woman facing domestic abuse was not facing persecution on account of social group membership. 22 I. & N. Dec. 906 (BIA 1999). Then-Attorney General Janet Reno overturned the decision, proposed new regulations for gender-related asylum claims (affirming that gender can be a sufficiently unifying characteristic), and ordered the BIA to reconsider the case after these regulations were finalized. While these regulations have not yet been finalized, DHS has since argued in a brief to the Attorney General that he should grant R-A- asylum under the Matter of Acosta standard. See Department of Homeland Security’s Position on Respondent’s Eligibility for Relief, Feb. 19, 2004, available at http://cgrs.uchastings.edu/documents/legal/dhs_brief_ra.pdf (visited Feb. 10, 2006). Specifically, the DHS now takes the position that “married women in Guatemala who are unable to leave the relationship” are a particular social group under the law. Id. at 27-28. The Attorney General remanded the case to the BIA in January 2005, see Matter of R-A-, 23 I. & N. Dec. 694 (AG 2005), where it is currently pending.” Gao at 11-12.
A forthcoming article will discuss the arguments to be used at the immigration court for those representing asylum claimants on the basis of forced marriage in light of the Gao decision, which recognizes young women opposing forced marriage as a social group that is persecuted. Other arguments presented in the article include persecution on the basis of a political opinion opposing forced marriage. It will appear at www.ssrn.com.
* Vanessa M.G. von Struensee is a recent New York Bar Admittee. She practices general litigation in Washington, D.C.Case Law Update
By Matthew S. Lerner,Esq.*
Recent Grants for Leave to Appeal to the New York Court of Appeals
This month's edition concerns three appeals that reach the New York Court of Appeals through motions the parties made to the Appellate Division.
The first appeal comes from the Appellate Division, First Department and involves bizarre facts and issues of premises liability. In Rugieri v. Bannister, 22 A.D.3d 299 (1st Dep't 2005), the plaintiff was seriously injured when he was attempting to find the bathroom in a residential home and, accidentally, choose a door that lead to the cellar. One of the defendants, Leann Cheek, had borrowed the home from the defendant owner, and Cheek invited Rugieri and his companion over for dinner on the night of the accident. During dinner, Rugieri apparently excused himself from dinner to use the bathroom, and Cheek called out to Rugieri that he was attempting to open the incorrect door for the bathroom and, instead, was opening the cellar door.
The First Department held that summary dismissal in Cheek's favor was unwarranted given that the record demonstrated factual issues as to whether Cheek's guidance to Rugieri was sufficiently specific to lead him to the bathroom in light of the proximity of a similar doorway that posed a danger. The Court of Appeals will likely examine the following discreet rule of premises liability:
The Appellate Division, Second Department in Welsbach Elec. Corp. v. MasTec N. Am. Inc., 23 A.D.3d 639 (2d Dep't 2005), recently granted MasTec's motion for leave to appeal to the Court of Appeals regarding a contract and conflicts-of-law question. The open issue involves the applicability of a "pay-if-paid" provision in a subcontract that is controlled by Florida law. A "pay-if-paid" or "pay-when-paid" provision generally involves a contract provision in which the general contractor's obligation to pay the subcontractor is contingent on and subject to the general contractor's receipt of payment from the owner of the project.
Welsbach involved a subcontract controlled by Florida law between the plaintiff and defendant, and that subcontract had a provision making the defendant's payment contingent and subject to its receipt of payment regarding the primary contract with nonparty Telergy Metro LLC. In sharp contrast to the First Department's recent decision in Hugh O'Kane Elec. Co., LLC v. MasTec N. Am. Inc., 19 A.D.3d 126 (1st Dep't 2005) on an extremely similar issue, the Second Department held that under New York's contract conflicts-of-law rules it could not enforce the foreign contract containing the pay-if-paid provision because it violated a public policy of New York. Because the Second Department failed to expressly state whether the enforcement would violate a "fundamental" public policy of this State, the correct standard under this State's conflict-of-law rules, the Court of Appeals will likely address that exact issue and resolve the conflict between the Appellate Division Departments.
The Court of Appeals will also address an insurance coverage question in Appalachian Ins. Co. v. General Elec. Co., 19 A.D.3d 198 (1st Dep't 2005), regarding the meaning of the term "occurrence" in excess coverage insurance policies. The First Department stated the following regarding the trigger for the excess insurers in relation to the claimant's allegations of asbestos exposure:
The Court of Appeals will examine the First Department's affirmance of a declaration that certain of the excess insurers are not obligated to defend or indemnify the insured with respect to any single claim that does not exceed $5 million.
* Matthew S. Lerner is an associate at the Albany, New York office of Goldberg Segalla LLP. He is also the author of New York Civil Law, a forum for the discussion of New York Appellate Law, Civil Procedure, Insurance Law and Defense, and other interesting legal issues. He can reached at: email@example.com and his “blawg” can be accessed at: http://www.nylaw.typepad.com/.Practical Guide to a Residential Closing
By Heena Shaikh*
1) Make the appropriate introductions to all of the parties present at the closing (i.e., bank attorney, title company, brokers, sellers, and purchasers).
2) Always carry a calculator and your notary stamp.
[TIP: If one mortgage is notarized by you, make sure you also notarize all of the copies of the mortgage. The mortgage to be recorded must be identical.]
3) Prior to the time of closing, ask your clients to bring their checkbook and some form of photo identification.
[TIP: Both the bank and the title company require a copy of the identification from both of the parties.]
4) Seller’s attorney obligations at the closing include:
5) Buyer’s attorney obligations at the closing include:
[TIP: Make sure the client has a copy of all the documents being signed at the closing.]
[TIP: Always verify how the name of the borrower is printed on the documents. For example, if a middle initial is used, ask your client to sign with the middle initial.]
[TIP: All parties named on the mortgage must attend the closing.]
[TIP: Original signed mortgage goes to the title company to record.]
[TIP: Make sure that you have a copy of the payoff letter for the file.]
6) Buyer’s attorney should make sure that the clients have a copy of the deed for their STAR exemption, if they qualify.
[TIP: STAR exemption significantly reduces school taxes.]
7) Provide all parties with a copy of the HUD statement. Keep a copy of all the checks cut at the closing in the file.
8) Exchange the keys and garage door openers.
[TIP: Suggest to the client that they should replace the locks.]
* Heena Shaikh is an associate at the Law Office of Anne Reynolds Copps in Albany, New York. Ms. Shaikh focuses her practice primarily in the areas of real estate and estate planning.Standing Out in the Crowd—a monthly column
By Christina H. Bost Seaton, Esq.*
On the Board
When I talk with other young lawyers, they often ask how they’re supposed to meet clients. After three years in law school, and years spent in the firm, they complain that the only people they know are lawyers. This is one of the reasons that I urged you, in last month’s column, to make the time to keep in touch with your friends, even when you’re at your most busy.
But let’s assume that last month’s column came too late, or that you’re too impatient to wait for your friends to become big shots at deep-pocketed corporations. You want to skip right towards bringing in your very own clients. What do you do?
Joining a Board of Directors is a particularly good way to meet established professionals who work in a wide variety of businesses. Think of all the Corporations cases that you read in law school: the members of the board were well-established captains of industry—officers, directors, and executives of other large corporations, politicians, or high-ranking individuals at investment banks. If you want to be a rainmaker, those are exactly the sort of people that you want to know. Someday, the day may come when they need legal advice. When that day comes, they may remember your thoughtful explanation of the Boards’ new Sarbanes-Oxley duties, and think that you will give them similarly thoughtful legal guidance.
Sure, you say, it’d be great to be on the Board of a Fortune 500 company, but they’re not exactly beating down my door. There are boards, however, that really do need your expert legal knowledge. Every nonprofit entity has a Board of Directors, and the directors on these boards are also well-established and respected professionals, much like the board members you read about in your casebook. Becoming a director for a nonprofit board gives you regular, sustained access to individuals who are established professionals at major corporations and banks. Even better, the business of board meetings will give you an opportunity to illustrate your lawyerly good judgment.
Through these repeat interactions, you’ll have the opportunity to get to know the other board members as individuals, and hopefully, to build relationships. You’ll also have the opportunity to contribute to your community, something in which most people, in any profession, are woefully deficient.
Now, this is the point where my detractors will say that this is a great idea, in theory, but seriously—how the heck do you get on a nonprofit board? Well, for the attorneys in our audience based in New York City, I know of several organizations that coordinate placement on the boards of nonprofit organizations. The New York Junior League, for instance, runs a six-week training session every spring and fall. The course trains participants in the skills they need to join a board, and then works to place interested participants with nonprofit organizations that are looking for people to join their boards. This spring’s course starts on Tuesday, March 21, and you can get the application on www.nyjl.org. In addition, the City Bar Public Service Network also matches attorneys with pro bono opportunities, including placement on boards. In other parts of the state, local chapters of the Junior League and local bar associations may have similar programs.
So, no more excuses. If you want to be a rainmaker, you’ve got to go where the clients are…and now you can.
* Christina Bost Seaton is a second year associate in the litigation and labor & employment practice groups at Troutman Sanders LLP in Manhattan, where she is constantly trying to “play rainmaker.”The Challenges of Foreign–Trained New York LL.M.s
By Desa Calder, LL.M.*
The era of globalization resulted in a vast number of foreign-trained attorneys and law school graduates, of all walks of life and from across the globe, enrolling in the one-year LL.M. degree program offered by U.S. law schools. Foreign LL.M. candidates are finding it necessary to understand the American legal system since United States constitutional law and policy have penetrated many commercial centers of the world and have served as a compass for several nations. While many foreign LL.M.s usually return to their native countries upon completing the degree to practice law, many stay in New York following graduation with the hope of permanently residing in the state and passing the Bar examination in order to practice law in the United States of America.
The Masters of Law degree (LL.M. or Legum Magister) is a post-graduate degree. It is offered at many law schools, and provides students trained in law outside the United States with the opportunity to develop an appreciation of the U.S. legal system and the culture of the law in the country’s affairs. During the two-semester, full-time program, students are introduced to Legal Methods and American Legal Research and Writing, are allowed to design a curriculum that best meets their needs and goals, and are able to gain in-depth knowledge of the law in various fields such as tax law, intellectual property law, international law, family law, and immigration law. The program is usually small and highly selective, with no more than twenty students, which ensures that every student will receive personal attention and counseling. To earn the degree, students must successfully complete twenty-four units of credit with a 3.00 GPA, by choosing courses and seminars from among those offered in the J.D. program. Graduation from this program makes these students eligible to take the New York State Bar examination and practice law without applying for the three-year J.D. degree.
For English-speaking students whose countries have a British-based legal system, the LL.M. program is a breeze. But for those whose native language is not English and whose legal system is not based on common law, understanding the doctrine of stare decisis, briefing cases, attending tutorials, and completing examinations on time can be a test like none they have ever faced before.
Moreover, the job search for U.S. employment both before and after graduation and/or admittance to the New York State Bar can prove daunting. Many realize that they are placed on an uneven platform as opposed to their fellow J.D. and American LL.M. classmates who secure jobs through on-campus interviews and office of career services (OCS) computerized job search postings. Often LL.M.s are excluded from interviews and job fairs because the majority of employers who come to conduct these interviews are specifically focused on recruiting 2L/3L J.D. students with American law degrees and/or professional experience. Many federal and state government employers also have restrictions on hiring foreign nationals. Faced with the dismal reality of the myriad of stereotypes, biases, and disadvantages continuously perpetuated and thrown in their paths by potential employers, a foreign LL.M.s dream of becoming an American attorney can eventually grow cold after receiving one rejection letter after another.
Many reasons have been put forward to explain this imbalance in New York. They range from the complications foreign-trained LL.M. students face with visa regulations to the fact that most are not fluent in English to the belief that they have not had sufficient exposure to American law after just completing one year in a U.S. law school. Therefore, since LL.M.s can expect a more difficult job search, it is in their best interest to begin their job search much earlier and to try twice as hard as other competing J.D. candidates.
Despite the numerous challenges I faced before finally landing my first legal job in New York, I had already decided not to fall prey to the situation. I approached the problem with a different game plan. I was determined to succeed and prove the employers wrong by showing them that I was just as good as or even better than other J.D. graduates, and to convince my fellow LL.M. classmates that the sky was still the limit. I knew I had to do it in order to break down the barrier for all LL.M. students, regardless of their race, religion, creed or nationality, who would come after me.
Since the typical employment strategies do not seem to apply to U.S. LL.M.s, I would like to suggest a few tips to those who are currently looking for jobs. As you plan your search in New York, you need to pay more attention to:
Law schools and bar associations also need to place more emphasis on the LL.M. program and play a more vital role in this problem by arranging fellowships, mentor programs, and summer internships or externships with law firms, courts, and companies for foreign-trained attorneys who want to see how law is practiced in the U.S. If it can be done for J.D. students, it can certainly be done for foreign LL.M.s who pay the same tuition, complete the same theses, and pass the same law school and bar examinations like other American students. Employers need to be more open-minded with their hiring criteria and realize that New York is a cosmopolitan melting pot. LL.M.s also need to be more flexible with respect to the kinds of jobs they apply to and the first job they will accept. It is important to just get one’s foot in the door and not be finicky when the competition is tough and the odds are against you. Foreign LL.M.s may be more successful if they are willing to consider first taking a position with a corporation or a judge instead of a law firm, and subsequently moving onto another employer once they have gained sufficient experience.
My professional journey has just begun, and, as a young attorney, I am sure I will face more challenges in my career. But I know that one thing is sure - the time has come for a positive change in the careers of foreign LL.M. attorneys.
* Desa Calder is an attorney with The First Rehabilitation Life Insurance Company of America in Great Neck, New York.Liaison Report
By Randall Lewis, Liaison to the General Practice Section
I recently had the opportunity to attend the Annual Meeting of the General Practice Section (GP Section) and the Executive Committee meetings held at the NYSBA Annual Meeting in New York City. The Executive Committee met for two meetings and a dinner during the Annual Meeting.
The General Practice Section is forming (reorganizing) several committees to focus on helping general practitioners with substantive areas of the law. The focus will be to provide information in a manner, which only focuses on issues relevant to general practitioners without dealing with complex items that are dealt with in a substantive section. The GP Section is looking for individuals willing to serve on these committees. A listing of the committees are available on the Section’s website and can be accessed at the following link.
Additionally, the GP Section will continue to focus on law office management and leadership. The Summer meeting of the Section is being planned for West Point and tentative plans are to have a leadership workshop presented by West Point. This promises to be an exciting program. The GP Section’s Executive Committee would like to renew a relationship with the Young Lawyers Section, and has discussed making some scholarships available to members of the YLS who wish to attend the summer meeting. If anyone is interested, please email me at firstname.lastname@example.org.SCHOLARSHIP OPPORTUNITY for Law Students
The Dominican Bar Association Law School Scholarship Program awards scholarships in the amount of $1500.00 to individuals in their first, second, or third year of law school. Students must be enrolled in law school full-time or part-time to qualify. The scholarships are awarded to students based primarily on the following three factors:
All applications must be received by the Dominican Bar Association on or before April 1, 2006, at:
Dominican Bar Association
FAXED OR ELECTRONICALLY TRANSMITTED MATERIALS WILL NOT BE ACCEPTED. INCOMPLETE APPLICATIONS CANNOT BE CONSIDERED.
Calendar of Events
3/21/2006 2nd District "Networking With A Purpose"
3/29/2006 Stayed Tuned for the 3rd and 4th District Judicial Forum
Electronically In-Touch welcomes articles from members of the legal profession on subjects of interest to New York State young lawyers. Views expressed in articles are the authors' only and are not to be attributed to Electronically In-Touch, its editors, the Young Lawyers Section, or the New York State Bar Association unless expressly so stated. Authors are responsible for the correctness of all content, citations, and quotations. Contact the editor, Justina Cintrón Perino, at email@example.com for submission guidelines. Material accepted by the Young Lawyers Section may be published or made available through print, film, electronically, and/or other media. Copyright (c) 2006 by the New York State Bar Association. Electronically In-Touch, the eNewsletter publication of the New York State Bar Association's Young Lawyers Section, One Elk Street, Albany, NY 12207, is issued twelve months each year.
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