Author Archive for Jonathan Lurie

DAPL Protesters’ Victory Has a Long Way to Go

The battle of the Standing Rock Sioux to put an end to the Dakota Access Pipeline (DAPL) running through their lands and under a lake sacred to their people has been a long one and mostly without fruit. However, they recently got their first real victory–sort of.

The judge handling the case has officially ruled that the environmental survey done before starting the pipeline was insufficient. This is the first step necessary to shut down the pipeline completely. However, as substantial as this victory is, the ruling does not go as far as the Standing Rock Sioux would likely have hoped for. Let’s take a look at the ruling, and what it does and doesn’t do, to see why the judge ruled that the environmental survey was insufficient and why the victory is not all the Tribe hoped.

An Insufficient Study Under the National Environmental Policy Act

The Standing Rock Sioux have previously lost cases attempting to stop the DAPL on grounds that the DAPL destroyed sites sacred to them (this one was lost after the site in question was bulldozed over the weekend after the suit was filed) and that they were not consulted on the pipeline as required under a treaty between them and the U.S. Government. This time, however, the Sioux were targeting the insufficiency of the study made on the environmental impact of the pipeline. They argued that the study, the one expedited via an executive order from President Trump on the fifth day of his presidency, didn’t meet the requirements of the National Environmental Policy Act of 1970 (NEPA). This time, the judge in their case finally agreed with them.

DAPLNEPA puts an obligation on federal agencies and actors to “consider every significant aspect of the environmental impact of a proposed action.” This doesn’t mean that they can’t do what they intended if there is the potential of serious environmental impact, just that they need to have considered it. To quote case law on the act, “NEPA merely prohibits uninformed-rather than unwise-agency action.”

NEPA requires agencies to put together an Environmental Impact Statement for major proposed federal actions along with either a Finding of No Significant Impact (FONSI) or a statement saying how they will mitigate negative impact on the environment called- lo and behold- a Mitigated FONSI. In order for these reports to meet the requirements of NEPA, the agency must have: “(1) accurately identified the relevant environmental concern, (2) taken a hard look at the problem in preparing its [FONSI or Environmental Assessment], (3) the ability to make a convincing case for its finding of no significant impact, and (4) shown that even if there is an impact of true significance, an EIS is unnecessary because changes or safeguards in the project sufficiently reduce the impact to a minimum. Out of these, the vaguely described “hard look” requirement is the one that made the difference. In order to have taken a hard look, an agency needs to look both the probability and the consequences of any given harm to the environment that has more than an extremely remote chance of happening.

In his whopping 91-page decision Judge James Boasberg highlighted two main reasons why the environmental study didn’t take the hard look required by NEPA. First, the U.S. Army Corp of Engineers did not consider how controversial the impact of the DAPL on the environment would be. Second, they did not look at the impact of the pipeline on the Sioux’s ability to hunt and fish on the land.

Controversial, in the context of NEPA, doesn’t mean quite what you’d imagine it to. Instead of implying that agencies should consider whether the public might consider the impact on the environment controversial, the requirement instead focuses on controversy as to the scientific method of the study–whether the means by which the study itself was done may be controversial. This was the case for the Corps’ study. Specifically, the study’s methodology was criticized for making a very general analysis of potential environmental impacts–often relying on studies which were either too general or outright erroneous when applied to the DAPL. By failing to consider whether their methods were improper, the study failed to meet the hard look requirements of the NEPA.

As to the ability to hunt and fish, the Corps’ study looked at the potential impact on the water around the DAPL but neglected to consider potential harm to animal and aquatic life. Even if the chances were remote, the Corps needed to at least consider the impact. By failing to do so they once again fell short of the hard look requirement.

The Loss in the Win

So we can see that the Sioux have got their win. The environmental study is officially insufficient under the NEPA. So why would they not be celebrating? The answer is that Judge Boasberg decided not to actually put a stop to the DAPL just yet.

Where the NEPA is violated the usual remedy is to put a halt to the project in violation until the agency brings itself into compliance by completing its study. This would normally mean that Judge Boasberg would withdraw the DAPL’s permits and easement and put a stop to its functions until a more thorough study was completed. However, citing the expense of stopping the pipeline, the judge instead has allowed for hearings on a potential remedy. After a hearing last week on June 21st, it’s looking like any potential action won’t be in the cards until at least August 28th when the final briefs are due.

This means no injunction for months, which in turn means that the enormous DAPL will continue shipping upwards of 520,000 barrels of crude oil a day across the land of the Standing Rock Sioux. A far from ideal situation for the Tribe. What’s more given the tone of the order (mentioning that Judge Boasberg had previously shot down the Tribe’s last two lawsuits) and the judge’s hesitance to put an actual injunction in place the Standing Rock Sioux have to be cautiously optimistic at best. The order is a win, but it’s far from a true victory.

Trump Quickly Backs Off on Offer of Protection to DREAMERs

Since well before he was elected, President Trump has left no questions about his positions on immigration. With this in mind, an announcement out of the Department of Homeland Security last week–stating that “the memorandum that created the Deferred Action for Childhood Arrivals (DACA) program will remain in effect”–came as more than a bit of a shock.

The DACA refers to a 2012 policy directive out of the Obama administration. The directive essentially offered a watered down version of the Development, Relief, and Education for Alien Minors Act, better known as the DREAM Act, to those who would have qualified under the act had it been passed when it was introduced back in 2001. The policy provided a new avenue for those who would have qualified under the DREAM Act to apply for citizenship to instead apply for a stay on deportation and a potential work visa. Those who applied under the policy are called DREAMERs due to the similarities between the DACA and the DREAM Act. As of today, well over 700,000 people have benefitted from the DACA.

However, with the Trump administration taking over all those people had to once again fear that they would be targeted for deportation. To make things worse, there was a strong potential that the very information they had provided to potentially receive aid under the DACA would be used against them in deportation proceedings. Thus, this recent announcement was such cause for celebration that many were left in disbelief considering the approach the Trump administration had taken to immigration so far.

TrumpUnfortunately, disbelief was perhaps the right response. The assistant secretary for public affairs at the Department of Homeland Security, Jonathan Hoffman, was quick to release a statement clarifying–or more accurately muddying–the news release on the DACA. According to Mr. Hoffman, the announcement was meant to state that there has been “no final determination made about the DACA program.” While Hoffman did state that the administration wants a “compassionate” approach to the DACA and only Congress can provide a long term solution, he was notably sparse with details as to how the DACA will be handled going forward.

When comes to those who might apply for the benefits of the DACA, uncertainty is almost worse than outright denial. This sort of waffling leaves DREAMERs in a perilous position. Do you apply for the benefits of the DACA, even knowing that the very information you use to apply may be used against you. Or do you simply continue on in the extremely stressful and risky situation of living life as an illegal immigrant.

Let’s take a look at exactly how the DACA–if its protections still exist–works as well as the information that is required to apply for the protections of the DACA

How Does the DACA Work?

In order to receive the benefits of the DACA, the applicant must fulfill a laundry list of requirements:

  • (1) They must be under 36 years old (as of today);
  • (2) they must have been under 16 years old when they came to this country,
  • (3) they must have lived in the U.S. non-stop from June 15, 2007 to today;
  • (4) they must have entered the country illegally or had their legal status expire before June 15, 2012;
  • (5) they can’t have been convicted of a felony, a significant misdemeanor (domestic violence, sexual abuse, burglary, and the like), any three misdemeanors;
  • (6) have graduated from high school, be in school, received a GED, or have been honorably discharged from the U.S. Armed Forces; and
  • (7) not be considered a threat U.S. national security.

This is obviously a pretty hefty list just to qualify but it covers an enormous number of people and offers a huge change in lifestyle for those people in terms of both personal security and securing work. However, proving this list requires somebody to provide an enormous amount of information about themselves as evidence. Proof of identity, where you went to school, where you live, when and how you got here, etc. So complicated is compiling the necessary evidence that it generally requires hiring a lawyer to make sure you got it all. The prospect of going through all the time and expense of making a DACA application, only to have that stack evidence turned against you is not only a stressful proposition for DREAMERs, it also outright undermines any attempt by the government to reach out to people here illegally.

Uncertainty Under the Law Leaves DREAMERs With a Lose-Lose

Mr. Hoffman describes the desire of the Trump administration to treat DREAMERs with “compassion.” They certainly deserve compassion, many DREAMERs did not even know they entered the country illegally. Often they have attended schools in the U.S. all their life and have no ties whatsoever to anything outside this country.

However, flip flopping on the DACA like this is the opposite of compassion. Under Trump’s own executive orders, privacy protections have been stripped away from illegal immigrants. Immigration and Customs Enforcement agents need only ask to receive the information provided under the DACA and use it to arrest and deport would-be DREAMERs.

This leaves these people in a situation where they are damned if they do and damned if they don’t. Why would somebody in such a situation ever trust the government’s offer of amnesty if it can be so easily turned around on them. Would you? Allowing illegal immigrants to transition to legal status allows for taxation, safety, and more. We need these sort of programs to achieve this. However, when they are undercut as thoroughly as they have been by the Trump administration, it’s hard to see them gaining much traction in the future short of an actual act of Congress.

Offensive Trademarks are Protected Speech, According to the Supreme Court

Ding-dong the disparagement clause is dead. In a trademark law ruling that will substantially expand the amount of acceptable trademarks, the Supreme Court came down against a rule in trademark law which bars disparaging marks.

The disparagement clause specifically barred marks which disparage, bring into contempt or disrepute any person, living or dead, institutions, beliefs, or national symbols. Some examples of marks that have previously been refused protection based on this clause include such gems as “Democrats Shouldn’t Breed”, “Republicans Shouldn’t Breed”, “Have you Heard that Satan is a Republican?”, and a bizarre trademark with the goal of mocking the Boston Red Sox—Sex Rod. Most famously in the last few years, the disparagement clause was used to cancel six trademarks associated with the Washington Redskins. This was due to “Redskins” being a pejorative term for Native Americans.

Another mark which fell prey to the disparagement clause was the mark that led to the case the Supreme Court just ruled on–The Slants. The Slants are an all Asian-American band out of San Francisco. Their name is obviously a pejorative term for Asian people. However, they specifically chose the name with the goal of making their name an ironic reclamation of the offensive term. Despite this, because the term itself disparages those of Asian descent, they were denied the protection of a trademark on their band name.

The Slants chose to challenge this in court, saying that a rule forbidding disparaging marks violates the First Amendment. As we covered previously, the U.S. Court of Appeals agreed with the band members. Now the Supreme Court has done the same, ending the disparagement clause once and for all.

offensive trademarksWhy is the Disparagement Clause Unconstitutional?

The government is generally not allowed to restrict speech based on viewpoint. If this were not the case, the government might be free to silence those who disagree with it with impunity.  However, the government can pass laws that restrict speech where they are content-neutral—not aimed at censoring the content of speech, but instead aimed at restricting the time, place, or manner which speech can be conveyed. Where a law makes a viewpoint based restriction, it will be unconstitutional most of the time.

In deciding whether a law makes a viewpoint based speech restriction the courts look to see if, within any topic, the government has target a certain type of speech for disfavor based on the what that speech is saying. For example, if the government forbade pro-lion taming speech but allowed anti-lion taming speech, that restriction would almost certainly be unconstitutional.

The Supreme Court found that the disparagement clause targeted a subject matter of the people, institutions, beliefs, and national symbols which the clause covers. Inside the subject matter, the clause allowed people to register marks referring to people or groups in a positive or neutral way, but not derogatory ones. Thus, the clause targeted a specific viewpoint and violated the First Amendment. This was exacerbated by the fact that the disparagement clause essentially allowed the government to determine what types of marks were offensive. The entire point of preventing viewpoint based speech restrictions is to prevent the government from choosing which speech to censor and which to allow.

The government defended the disparagement clause by describing trademarks as either government speech, government subsidy, or commercial speech–all types of speech which receive a lower level of protection than your own private speech. The Supreme Court rejected all of these classifications–officially declaring trademarks private speech.

Government speech, speech conveying a message from the government, does not need to be viewpoint neutral. This is because the government is allowed to voice its own position on an issue as opposed to sponsoring both sides of any matter. However, government speech has to actually come from the government. Trademarks don’t meet this requirement. The message from a trademark is communicating a private party’s brand, not the government’s approval or involvement in that brand. As the Supreme Court said, if trademarks represent the government speaking then the “Federal Government is babbling prodigiously and incoherently.”

Similarly to government speech, the government may subsidize one viewpoint over another. However, subsidies come in the form of money or tax breaks, not trademarks. Once again, the Supreme Court wasn’t having it.

Finally, commercial speech receives less protection than private speech. In general, speech is commercial when it is made by a company or individual with the goal of making a profit. However, the amount of protection is not so much less for commercial speech that it would make the disparagement clause constitutional. Restrictions on commercial speech still need to be as narrow as possible to achieve the government’s objective and the Supreme Court ruled that the disparagement clause just wasn’t narrow enough.

What Does The End of the Disparagement Clause Mean?

First and foremost, this ruling means that an enormous number of trademarks have become available. In the coming weeks, there will likely be an enormous boom in applications for the disparaging marks that were once out of reach.

Marks that were previously cancelled under the clause, such as the marks of the Washington Redskins, will likely be revived. In fact, the owner of the team–having filed briefs in support of a ruling like this with the Supreme Court–has been publically celebrating the ruling on social media.

This celebration is the perfect example of why many have found the ruling no cause to party–it allows racially insensitive or outright offensive marks such as the “Redskins” to receive protection. The band members of The Slants have recognized this, and have publically made it known that they are none too happy to be lumped in on the same side as the Redskins. However, the band members said that they pursued the case regardless because they felt that the broader free speech implications were more important.

So this is the central dilemma. Does this ruling mean that racial slurs can receive trademark protection? Yes. However, the flip side to this is that the alternative allows the government to choose what is offensive. As the Supreme Court noted in its ruling, the whole point of forbidding viewpoint based discrimination is to prevent the government from censoring speech. Where the majority gets to choose what speech is acceptable, the minority tends to get the short end of the stick. All the rest of our areas of intellectual property law don’t involve much in the way of morality restrictions, trademark is just catching up.

Supreme Court Limits Patent Rights

One of the hallmarks of a successful business is protections on an invention which provide a barrier to competition beyond just money–a patent. Whether you’re an inventor or an entrepreneur, intellectual property protection is close to the heart of your livelihood. Keeping track of what these protections offer is crucial, and these last couple weeks has been enormous for patent law rulings out of the US Supreme Court. First, they limited jurisdictions for patent infringement cases substantially-making patent law much more defendant friendly. Even more recently, and more importantly for patent rights, they limited patent’s exclusive rights by applying the first sale doctrine to patent law at home and abroad with more force than ever before.

What is the First Sale Doctrine?

The first sale doctrine is a concept, also known as exhaustion, that is found as part of the statutory law behind copyright law. The rule is fairly simple but requires a bit of an understanding of the rights intellectual property grants you. Owning a copyright in a work gives you the exclusive right to sell (or really distribute in any way), display, make copies of, or make directive works from that work. Out of all of these, the first sale doctrine exclusively impacts the distribution rights. Once you’ve sold something, or even intentionally given it away, you have “exhausted your distribution rights in that particular work. This means that whoever owns the object or work now is free to sell it, put it on display, blow it up with dynamite-basically distribute or dispose of it as they wish. They can’t make copies, you keep that right, but the distribution right is gone after first sale-thus the first sale doctrine. In Impression Products v. Lexmark, the Supreme Court took this concept from copyright law and decided how it should apply in patent.

Laser Printer Losers-The Case Itself

Lexmark makes laser printers and, more importantly for this case, toner cartridges for those printers. These cartridges, once used up, can be much more cheaply refilled than replaced. This left Lexmark with a bit of a problem-an entire market dedicated to underselling their products by refilling and reselling cartridges. These businesses buy up used cartridges from US purchasers and purchasers abroad to resell them after a refill. With these competitors in mind Lexmark offered their product in two ways, at full price with no stipulations or at a lower price along with a promise to return the cartridges to Lexmark. In order to enforce this, Lexmark included microchips in their cartridges to prevent reuse-a measure the refillers promptly learned how to circumvent.

After failing to curb the businesses of these competitors, Lexmark decided to sue all the companies refilling and selling their used cartridges. They had a big problem though, the contract to not resell the cartridges wasn’t with the refillers it was with the clients who sold to the refillers. Thus, with no contract to assert, Lexmark said that these refillers were infringing on their patent rights.

A patent gives its owners the right to exclude others from making, using, selling, or importing the invention. Lexmark said that because they prohibited reuse and resale in their contracts, the refillers were violating their distribution rights. By the time the case reached the Supreme  Court, there were two serious questions to be addressed. First, whether the contract term could be enforced against the refillers through a patent infringement lawsuit. Second, whethand for patent rights abroad, the answers were no and yes respectively.

What the Decision Does

Case law has long established that exhaustion can apply in patent similar to how it does in copyright law. With this and some recent Supreme Court rulings in mind, the outlook was never particularly good for Lexmark.

As enforceable as their no sale agreements were under contract law, the Supreme Court wasn’t buying it under patent law. The argument, and Lexmark’s hope, was that by selling something with a restriction against further sale they had preserved their first sale rights. This isn’t the case according to the Supreme Court, you can’t contract around the first sale doctrine. Once you sell something

Exhaustion abroad is something the Supreme Court has already addressed for copyright law-and they didn’t go the way Lexmark would want in that case. So it’s no surprise that they followed their own previous ruling in applying exhaustion to patent. From now on selling something outside the US officially counts as a sale under the first sale doctrine and exhausts your distribution right.

These rulings mean that patent rights have been limited, more strictly applying the first sale doctrine to your patents than ever before. However, for those following intellectual property law, this ruling has been more a matter of when than if. The Supreme Court was simply consistent with how it’s handled copyright law in the past.

It’s worth noting that a license is not a sale and that exhaustion applies only to the item actually sold.  This will limit this ruling for many common items such as software or iTunes songs as you more often license these products than actually purchase them.

What’s more, the ruling skirts around the edges of a few other areas of law. Anti-circumvention makes it illegal to, as the name implies, circumvent effective security measures such as the microchips Lexmark installed in their cartridges. Repair and reconstruction is a distinction within patent law. You are allowed to repair an object with a patent on it, but full reconstruction can cross into the territory of patent infringement. While both of these might have applied in this case, neither were considered by the Supreme Court whatsoever.

This ruling will mean that you and your business need to be more careful about how you handle sales if you want to protect your distribution rights in something. There are ways to maintain your rights, depending on how you distribute your product. After this ruling, it’s more important than ever to consider how you’re going to handle your rights and your product.

Whole Foods Loses the Fight to Stop Employee’s NLRA Right to Record

As an employee, protecting your rights is incredibly important. However, even with full knowledge of the rights you possess it can be tricky to identify situations where rights are violated and gather the evidence to prove your case when you look to enforce those rights. Communicating with others and recording situations where your rights may have been violated can be critical in making a case or even just determining whether your rights have been violated in the first place. Thankfully, your right to record in the workplace was just given a major boost in a recent ruling against Whole Foods by the National Labor Relations Board (NLRB).

The NLRB is the federal agency in charge of enforcing labor laws related to unions, collective bargaining, and unfair labor practices-primarily as set forth in the National Labor Relations Act (NLRA). Just a few weeks ago, the Second Circuit upheld a decision of the NLRB deciding that Whole Foods had violated the NLRA through a policy barring recording conversations, phone calls or meetings in the workplace without manager approval.

With this case upheld on appeal, let’s take a look at the rights the NLRA grants you, the case itself, and what the case means for you as an employee or an employer.

Your NLRA Rights

The NLRA itself provides you a fairly broad suite of rights related to your ability to organize and bargain collectively. Under the act you have the right to (or not to) self-organize, form, join, or assist labor organizations, bargain collectively through representatives of your own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. This basically means you have the right to choose whether or not to join with other employees in bargaining for employment terms. You also have the right to take the steps necessary to coordinate that group bargaining.

In order to protect these rights, the NLRA also makes it an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise” of any of the rights discussed above.

The Case Against Whole Foods

Whole Foods had two policies on the books that got them into the legal trouble which led to this case. First, a policy forbidding any audio or visual recording of company meetings-with any recording device-without prior approval of a manager. The second policy applied a similar recording ban on any conversation held during business hours. These policies applied to any topic of conversation and all areas of every Whole Foods store.

The stated goal behind these policies was to encourage “open communication” and “spontaneous and honest dialogue.”  Whole Foods argued that, regardless of the policy, they strove to foster a culture where employees were free to speak up though open door policies and “town hall meetings.” They argued that recording meetings would damage the anonymity behind complaints and weaken employee rights.

However, the NLRB and the Second Circuit weren’t buying it. The test to see if rights have been violated isn’t whether an employer provides sufficient avenues for an employee to speak out, but rather whether the policy could inhibit an employee’s NLRA rights.

Whole FoodsWhen Does a Policy Violate the NLRA?

A policy inhibits rights where it would “reasonably tend to chill employees in the exercise or their” NLRA rights. This means that policies which tend to make it harder to exercise your rights are not ok. This can happen where a policy explicitly restricts you from doing something the NLRA guarantees. However, a policy also violates the NLRA when: 1) an employee would reasonably consider in to prohibit them from asserting NLRA rights; 2) the rule was made in response to union activity, or 3) the rule, despite how it is written, has been used to restrict employees’ NLRA rights. Where a rule is ambiguous, but could be interpreted to violate NLRA rights, it still violates the NLRA. This unacceptable overbreadth exists when an employee would reasonably interpret the policy to prevent exercise of NLRA rights. It is this rule against overbroad policies that worked against Whole Foods.

Ruling Against Whole Foods

The policies are a blanket ban on all recording. However, photography and video recording in the workplace have historically been guaranteed when it is done to document a potential violation of rights under the NLRA unless there is a particularly compelling reason for the employer to ban them such as the heightened privacy interests of patients within a hospital. The NLRA has even been interpreted to guarantee an employee’s ability to post these photographs and recordings on social media.

Despite Whole Foods stated purpose of maintaining open communication, the policies as written prevented employees from exercising these rights. Thus, the policies violated the NLRA by inappropriately curtailing protected employee actions.

However, the ruling didn’t hold Whole Foods’ feet to the fire too much. It only really required them to retract the policies, or at least reword them to provide exceptions for NLRA protected recording.

What Does This Mean For Employers and Employees?

One thing to keep in mind is that this is not the only time in recent memory that the Second Circuit has backed the NLRB in expanding the definitions of employee rights under the NLRA. It was just May of this year that they ruled that an employee had the right under the NLRA to post quite unflattering things about his manager in a social media post because the post also discussed an ongoing union election. This could be seen as a trend towards expanding the spheres in which an employee enjoys NLRA protection.

For employees, this ruling means that you enjoy greater NLRA protections on your right to organize and record the behavior of your employer. This is incredibly important because proving a violation of your NLRA rights will often require this sort of recorded evidence.

As an employer, this ruling can act as guidance for crafting policies on recording that avoid the mistakes of Whole Foods. Recording restrictions haven’t been banned altogether, rather recording restrictions without clearly defined exemptions for NLRA rights have. The lesson here is to make sure that your policies include these exemptions in order to avoid trouble with the NLRB.

So is this the beginning of a trend where NLRA rights catch up with tech? It’s simply too early to say. However, the trend is encouraging. Recording devices are more broadly available than ever before. It’s a safe wager that a large portion of those reading have one in their pocket or purse as we speak. With recording rights protected, it’ll be easier than ever before to gather the evidence necessary to protect your rights-and that’s encouraging.