Massachusetts Legal Developments Blog

Massachusetts Legal Developments Blog

Commonwealth Ruling Sets Limits on Constructive Possession Firearm Law

 

A case decided by the Commonwealth earlier this year in May demonstrates the breadth, and the limits, of Massachusetts firearm laws. The case specifically dealt with Massachusetts General Law chapter 269, section 10(a), which establishes that it is a crime to possess or constructively possess a firearm without having a license to carry such a firearm. It is important to note that constructive possession does not mean actually holding or touching the firearm, it means that the person being charged had knowledge of the firearm’s presence and also had the ability to exercise control over the firearm, and the intent to do so. Simply put, under the law, a person can be charged with a crime punishable by imprisonment if the facts suggest that he or she had a close enough connection to control a firearm, and the intent to do so, even if he or she did not physically have the firearm in his or her hands or on his or her body.

There are limits to the law, however, as demonstrated in Commonwealth v. Eric Romero. In that case, Eric Romero had driven his car to his girlfriend’s house in Waltham, to pick her up. As he waited outside for his girlfriend, her brother came to the vehicle with a firearm, and showed it to Mr. Romero. Mr. Romero looked and it and touched it, and then gave it back to his girlfriend’s brother. Mr. Romero’s girlfriend came out after that, and they left for their night on the town. When Mr. Romero and his girlfriend returned, his girlfriend’s brother and his other brothers were outside and wanted to take a drive in Mr. Romero’s car because it was new. The men took a drive in the car, and then returned to the house and sat in the car listening to music. At that time, Officer Dennis M. Deveney, Jr., a Waltham police officer, observed the vehicle and the occupants sitting in a dimly lit street. Officer Deveney could not see the men, or what they were doing, except for their torsos and the tops of their heads. He noticed that the interior dome light was not on, and he decided to park his vehicle behind them for further observation.

Officer Deveney left his vehicle and walked behind Mr. Romero’s vehicle. When he was about three to five feet behind the vehicle, Officer Deveney saw Mr. Romero’s head move side to side, and the passenger look at something in his hands. Officer Deveney shined his flashlight into the vehicle and asked the men what was going on. The passenger—Mr. Romero’s girlfriend’s brother—dropped the object and Officer Deveney shined the flashlight on it, and saw that it was a black handgun. Ultimately, Mr. Romero was read his Miranda warnings and was arrested. In speaking with Officer Deveney, Mr. Romero said that he knew that his girlfriend’s brother had a firearm, but did not know that he had had it in the car. He also said that he had seen it earlier that day. Tests revealed that the firearm was unloaded, but was operable. Mr. Romero was charged, and later convicted, or carrying a firearm without a licensed under GL chapter 269, section 10(a), under the constructive possession theory. He appealed his conviction.

The Commonwealth determined that Mr. Romero was entitled to a directed verdict of not guilty, based on the facts of his case. The Court first analyzed the law, stating that it required the government to prove (1) that the defendant had knowledge of the firearm’s presence in his vehicle; (2) that he had the ability to exercise control over the weapon; and (3) that he intended to do so. After determining that Mr. Romero’s statement that he had seen the gun earlier that day was admissible, the Court determined whether the evidence was sufficient to convict Mr. Romero under the law.

The Court first noted that presence of the gun in the vehicle alone was not sufficient to convict Mr. Romero. The Court stated that first there needed to be evidence that Mr. Romero knew that the gun was in vehicle. The Court affirmed the Appeals Court on this element because Mr. Romero’s girlfriend’s brother had been openly handling the gun in the front seat of the vehicle, which was directly next to him. The inference that he knew about the weapon, the Court also found, was strengthened by the fact that he admitted that he had seen the weapon earlier that day.

Next the Court turned to Mr. Romero’s ability to control the handgun. The Commonwealth found that Mr. Romero did, in fact, have the ability to control the handgun due to his close proximity to it.

Finally, however, the Court examined the requirement that the evidence sufficiently show that Mr. Romero intended to exercise control and dominion over the firearm. On this element, the Court determined that the evidence was insufficient to convict Mr. Romero because there was only evidence that the gun was in a vehicle that Mr. Romero owned. The Court declined to hold this evidence to be sufficient, noting that even if Mr. Romero was present, and had ownership of the vehicle, there were no other facts showing intent, such as if he were wearing a gun holster. The Court also noted that if it were to hold that Mr. Romero intended to control the gun, based on those facts alone, they would be creating a rule of strict liability for owners and operators or vehicles or premises.

If you have been charged with violating firearms laws, you should immediately seek out the assistance of an experienced attorney. Contact the Edward R. Molari Attorney at Law today for a confidential consultation.

 

Tags: 
Criminal Defense

Trial of Alleged Mobster Heats Up Gun Law Debate

A Boston federal court case has come under the spotlight for its glimpse into the world of alleged organized crime activity, murder, money laundering and guns. USA Today reports that the trial of alleged mobster James “Whitey” Bulger is coming closer to a resolution after prosecutors called their final witnesses and rested their case on Friday.

 

The criminal charges against Mr. Bulger are extensive—they include murder charges related to 19 killings, extortion and money laundering. Mr. Bulger, whose alleged reign of murder and organized crime spread through Boston for over a quarter-century, will likely see a verdict on those charges in early August.

Despite the intrigue Mr. Bulger’s alleged shootings, stranglings, and slayings bring to the courtroom, his firearms offenses are nothing to be ignored. How Mr. Bulger came into possession of an enormous cache of firearms while bearing the status of one of America’s most wanted, is also worth a close examination.

According to Boston.com, while Mr. Bulger was evading arrest, he was able to purchase and possess at least 15 handguns and a 12-gauge shotgun. He purchased them in a spree-like fashion, in numerous states, and possibly from licensed dealers, gun shows, and private owners alike. Ultimately, the FBI found Mr. Bulger’s large collection of 29 weapons in the walls and bookshelves of an apartment that he and his girlfriend, Catherine Greig, had occupied. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) attempted to track down the origins of the weapons in a comprehensive report.

According to the ATF’s report, Mr. Bulger may have bought firearms from private individuals in Nevada and Utah at gun shows, where loopholes in the laws allow such sellers to sell firearms without conducting background checks or checking for identification. Similarly, Mr. Bulger may have bought his 45-caliber pistol from a private owner who placed an advertisement in a local magazine or newspaper. At least one firearm was purchased from a licensed dealer in Nevada. The owner of that shop maintained that she sold that particular gun to a friend, and not to Mr. Bulger.

Unfortunately, the ATF was largely unable to determine where many of Mr. Bulger’s firearms came from. However, the notion that a federal fugitive was able to purchase and possess so many firearms has brought the gun control debate back to the forefront of the American discussion. Many of the weapons may have been purchased after 1994, which is when the Brady Handgun Violence Protection Act became effective. That Act requires licensed firearms dealers to conduct background checks on prospective gun buyers. However, the Act does not require private sellers to conduct background checks before selling their firearms.

Some commentators believe that even stricter gun control legislation, such as universal background checks, may not have prevented Mr. Bulger from purchasing firearms because he had multiple pieces of identification. In any case, the James “Whitey” Bulger case is bringing attention to the possibility of strengthening gun control laws, especially in the aftermath of the Sandy Hook elementary school tragedy.

Mr. Bulger’s fate is still in the hands of the legal system. If you have been charged with violating criminal laws, you should immediately seek out the assistance of an experienced criminal law attorney. Contact the law offices of Edward R. Molari today for a confidential consultation.

 

Tags: 
Criminal Defense

Middlesex Appeals Court Sets Aside Verdict of Sex Offender on Accosting or Annoying Charges, Affirms Attempted Kidnapping Charges

 

In October, 2007, a Level 3 sex offender was on the loose in the MIT area of Massachusetts. Wickedlocal.com reported at the time that Joseph D. Sullivan, a 59-year-old homeless man with a 1989 conviction for indecent assault and battery on a person 14 or older, had accosted a 23-year-old MIT student.

The young woman was walking to her dorm room from the MIT campus around 9:45p.m., when she noticed that the driver of a green station wagon had pulled over onto the street in front of her. The driver, who was later identified as Mr. Sullivan, rolled down the passenger side window of the station wagon, and called out to her that she looked tired and that she should come over to the vehicle. The MIT student stated that she had ignored Mr. Sullivan’s attempt to get her attention, and, at that point, he got out of the station wagon and moved to the front of it. When the student began to walk quickly away from him, Mr. Sullivan ran to the back of the car and wedged the young woman between him and a building. Mr. Sullivan then repeatedly told the student to get into his car, and she walked by him.

Undeterred, Mr. Sullivan hopped back into the station wagon and made a U-turn, continuing to follow her. He stopped the car on another street and jumped out in front of the student, again blocking her so that she was wedged between his body and a building. He again asked her to get in his car and talk with him. The student yelled out Mr. Sullivan’s license plate number, which caused him to finally back away, and she moved away from him again. Mr. Sullivan then followed the student on foot, but finally left her alone as she repeatedly yelled out his license plate number. He then got back into the station wagon and drove away.  

Mr. Sullivan was ultimately arrested and convicted of attempted kidnapping and of accosting or annoying a person of the opposite sex . He moved to vacate the attempted kidnapping charges in 2010, which was denied, and then appealed his case to the Middlesex Appeals Court. The Appeal was decided on July 10 of this year.

On appeal, Mr. Sullivan argued that the Commonwealth had presented insufficient evidence on the attempted kidnapping charge, and that he had insufficient assistance of counsel, and that the lower court had wrongly denied his motion to vacate. More interesting, however, was Mr. Sullivan’s contention that the Commonwealth had also provided insufficient evidence for a conviction on the charge of accosting or annoying a person of the opposite sex. The Appeals Court affirmed the decisions of the lower courts on all of Mr. Sullivan’s arguments except for this last remaining issue.

The Appeals Court first noted that in order for a person to have accosted or annoyed a person of the opposite sex, the conduct must have been legally offensive and disorderly. The Appeals Court declined to define disorderly conduct, because it determined that Mr. Sullivan’s conduct did not reach the threshold required for offensive conduct. Under the law, it opined, offensive conduct is that which causes “displeasure, anger or resentment” and that is “repugnant to the prevailing sense of what is decent or moral.” That is, the conduct must be sexually explicit in some way. The Court determined that while Mr. Sullivan’s conduct was offensive in a generic sense, the evidence was insufficient to prove that it contained sexual content. Therefore, the Appeals Court reversed the indictment on the charge of accosting or annoying a person of the opposite sex, and set aside the verdict.

If you have been charged with violating criminal laws in Massachusetts, you should immediately contact an experienced attorney. Contact the Law Offices of Edward R. Molari  today at for a confidential consultation.

 

Other Blog Posts:

Reid Sentenced to Life Plus 80 Years

Will This Go on My Record?

 

 

Tags: 
Criminal Defense

Supreme Judicial Court Rules on Defense of License in Joint Venture Firearms Offense Cases

 

In October of 2007, Delanie Humphries carried out an ambush attack on a man in Worcester, Massachusetts. Yesterday, Massachusetts’ highest court, the Supreme Judicial Court, ruled on Mr. Humphries’ appeal of his 2010 conviction of charges in connection with the attack. The Supreme Judicial Court’s rulings are a notable development in Massachusetts’ law on firearms offenses, as well as criminal law in general.

The facts that led to Mr. Humphries’ arrest occurred on October 26, 2007. According to the telegram.com, victims Luis Acevedo and Andrew P. Robinson, had attended a birthday party for Shaonte Bottom and Mr. Robinson’s 4-year-old daughter. At the party, a guest named Monique Kumah, who is also the girlfriend of Mr. Humphries, was asked to leave. Sometime later, Mr. Humphries arrived near the house, and an altercation began between he and Mr. Acevedo. At some point during the altercation, Mr. Humphries’s called out the words “Bobo,” and Mr. Humphries’ cousin came from behind a tree with a handgun, opening fire.

Mr. Humphries, Mr. Acevedo, and the shooter scattered, and Mr. Acevedo, now joined by Mr. Robinson, got into a vehicle parked nearby. Shots were fired at the vehicle, but no one was injured.

According to the recent Supreme Judicial Court Opinion in Commonwealth v. Delanie Humphries, Mr. Humphries was ultimately found guilty by a jury on the counts of carrying a firearm without a license, carrying a loaded firearm without a license, and possession of ammunition without a firearm identification card. The charges against him were related to the theory of joint venture liability, under which a joint venturer is deemed liable for the underlying offense, if his coventurer actually commits the crime. Thus, in this case, Mr. Humphries did not actually possess the firearm that was used in the shooting, but he was found guilty under the joint venture theory.

Mr. Humphries argued several issues on appeal, including that his counsel had failed to introduce evidence of the car’s condition before the shooting, and that the judge’s instruction to the jury was flawed. However, the primary issue Mr. Humphries raised related to the firearms offense. In cases involving one defendant who is charged with a firearm offense, the defendant can raise the fact that he or she was properly licensed as a defense. Under the joint venture theory of liability, Mr. Humphries was convicted of the firearms offenses because no evidence was introduced that Mr. Holley was licensed to carry a firearm and possess ammunition. Mr. Humphries argued on appeal that the Commonwealth still should have had the burden to prove that Mr. Holley was not properly licensed beyond a reasonable doubt in order to establish Mr. Humphries’ liability as a coventurer.

The SJC opined that the issue raised by Mr. Humphries was a novel one, and first looked at precedent regarding the defense of license in firearms cases. The SJC determined that in one-defendant cases, the defendant must produce some evidence that he was actually licensed to carry a firearm, or possess ammunition, and, after that, the burden shifts to the prosecution to prove beyond a reasonable doubt that he is not licensed. The reason that the defendant must first provide that evidence is because whether he has a license is within his own knowledge, and not easily ascertainable by the prosecution.

The situation is different in the case of a firearms offense in the joint venture context because neither the coventurer defendant, nor the prosecution, is in a position to know whether the person who actually committed the offense was licensed or not. Thus, the SJC ultimately ruled that in such a case, the coventurer defendant need only raise the defense before the burden shifts to the prosecution. However, in the case of Mr. Humphries, defense of license was not raised in a timely manner, and the SJC ultimately affirmed the lower court’s ruling on his firearms offenses.

The case of Mr. Humphries illustrates the complex and constantly evolving gun laws of Massachusetts. If you have been charged with a firearms offense in Massachusetts, you should immediately seek out the assistance of an experienced defense attorney. Call the law offices of Edward R. Molari today at for a confidential consultation.

 

 

Tags: 
Criminal Defense

Woman’s Death in Sober Living Facility Allegedly at Hands of Ex Prompts Closer Look at Drug and Alcohol-Free Housing

 

An allegedly abusive relationship came to a tragic turning point this week, culminating in death and criminal charges under Massachusetts law, when 33-year-old Melissa Hardy was found lifeless in her ex-boyfriend’s home. According to The Boston Herald, Ms. Hardy’s body was found in a South Boston sober home for recovering drug and alcohol abusers, where Martin E. Jiminez had a room. According to her father, she had gone to Mr. Jiminez’s residence to collect her belongings after ending her relationship with him once and for all. Her father recounts that he had warned her to not go near Mr. Jiminez alone, and believes that Mr. Jiminez abused his daughter during their relationship. Ms. Hardy reportedly had decided to leave Mr. Jiminez after a physical altercation with him, in which he allegedly punched her in the face. She had been missing for several days, and family finally asked law enforcement officers to check Mr. Jiminez’s apartment for her, where she was finally found. According to prosecutors, Ms. Hardy’s body showed signs of trauma.

The horrific incident involving Ms. Hardy is not Mr. Jiminez’s first brush with the law. Mr. Jiminez was convicted of rape in 1989 and had done jail time, however, since his release, he had not registered as a sex offender. Before Ms. Hardy’s body was found on Wednesday, Mr. Jiminez had been arrested for violating Massachusetts DWI laws, when he was driving a car registered to Ms. Hardy’s father, high on drugs. The Boston Globe reports that on Monday, Mr. Jiminez was arrested for the DWI incident, and was taken to a nearby hospital. Incidentally, officials had issued a warrant for Mr. Jiminez’s arrest that same day, for the failing to register as a sex offender. Mr. Jiminez was arrested once again, on Wednesday, in connection to Ms. Hardy’s death. On Thursday, Mr. Jiminez was charged in South Boston District Municipal Court with murder. He pleaded not guilty to the charges and was ordered to be held without bail. He is apparently scheduled to appear in court again in early August.

In addition to drawing attention to the deadly, and unfortunate, consequences of abusive relationships, the case of Hardy and Jiminez has also brought attention to unregulated sober homes in Massachusetts. In Massachusetts, sober homes are usually owned privately, and, therefore, are not registered with the city or state. The sober living home in which Mr. Jiminez resided is owned by Nonbue Investments, LLC, a corporation based in Missouri. That particular facility had been the subject of neighborhood complaints, including concerns about drug abuse at the property. While many sober living homes in the Boston area are responsibly run and do provide a sober living environment, authorities believe that some sober homes offer no services to their residents, and can exacerbate problems.

In the wake of Ms. Hardy’s death, Massachusetts lawmakers are taking a closer look at regulating sober living facilities. Lawmakers Martin J. Walsh and Nick Collins have taken up the cause, cosponsoring legislation that would require certification for alcohol and drug-free facilities.

If you have been charged with violating criminal laws in Massachusetts, you should immediately seek out the assistance of an experienced criminal defense attorney. Contact the offices of Edward R. Molari today for a confidential consultation.

 

Tags: 
Criminal Defense

Suit Tests Limits of Copyright Fair Use as Applied to Online Listicles

One of the protections copyright law affords to a work’s copyright holder is the ability to exclude others from using the work. Under the Copyright Act, a “derivative work” is one that is basically derived from the original work—these types of works are protected, and, in general, only the holder of the copyright has the right to control them. Unauthorized derivative use of a work is considered to be copyright infringement. Transformative works are different. These works fall under the exception in copyright law that allows for fair use of copyrighted material, meaning that people other than the copyright holder may use the work for the transformative purpose. Four factors guide courts in determining whether a use of a work is fair use:

1.     The purpose of the use;

2.     The nature of the work;

3.     The amount of the work used; and

4.      The effect of the use upon the potential market value for, or value of, the work.

While courts use these factors to guide them, there is no hard and fast rule dictating what is fair use and what is infringement. This tension is brought to light in a new case filed this month by a photographer against the website BuzzFeed.

The IB Times reports that Kai Eiselein, of Idaho, filed a $3.6 million dollar copyright suit against BuzzFeed for the use of his photo. Mr. Eiselein is a photographer with over 30 years of experience, and worked as a photojournalist during his career. The photo was used on one of BuzzFeed’s “listicles”, which is essentially a shortened article in a list form, often with slides or accompanying photographs, that has enough writing to be considered an article. The listicle in question published by Buzzfeed in 2010, was called “The 30 Funniest Header Faces,” and essentially published photos of people being hit in the head with soccer balls. Mr. Eiselein’s photo was that of a female soccer player being hit in the head with a soccer ball.  

Matt Stopera is the Buzzfeed poster who created the listicle and posted Mr. Eiselein’s photo in June of 2010. Mr. Eiselein says that he first uploaded the photo to Flickr in 2009, and registered it with the copyright office in 2011. He further alleges that he sent BuzzFeed a takedown notice in May of 2011, but that the photo remained on the website for another two years. The listicle has now be renamed “The 29 Funniest Header Faces” and Mr. Eiselein’s photo has been removed.

According to Slate.com, in addition to suing for infringement, Mr. Eiselein is also suing BuzzFeed for contributory infringement, alleging that the website promotes content sharing. The photo was allegedly shared to 63 other websites, however many of those were personal online blogs.

BuzzFeed’s founder Jonah Peretti has argued that usage such as that complained of by Mr. Eiselein is transformative in nature, and therefore falls under fair use. Mr. Eiselein, predictably, disagrees with this analysis, citing that the nature of BuzzFeed’s use is commercial, among other things. Mr. Eiselein also notes that he would not have minded if his photo would have been hyperlinked within the listicle.

For copyright law scholars and other interested parties, a decision in Mr. Eiselein’s case may serve as a guidepost in the factor-intensive fair use test. Copyright suits arise out of a complex body of law, and understanding the consequences of the law requires skill and experience with copyright principles. If you are the subject of a copyright lawsuit, your best defense is to contact an experienced copyright law attorney. Call the law office of Edward R. Molari today for a confidential consultation.

Shoe Bomber Richard Reid Sentenced to Life, Plus 80 Years, Plus 5 Years Supervised Release

The following is the transcript of Judge Young's statements to shoe bomber Richard Reid, when sentencing him to life in prison plus eighty years (with five years supervised release after that).  It is worth reading.

 

Ruling by Judge William Young, US District Court.

Prior to sentencing, the Judge asked the defendant if he had anything to say His response: After admitting his guilt to the court for the record, Reid also admitted his 'allegiance to Osama bin Laden, to Islam, and to the religion of Allah,' defiantly
stating, 'I think I will not apologize for my actions,' and told the court 'I am at war with your country.'

Judge Young then delivered the statement quoted below:

Judge Young: "Mr. Richard C. Reid, hearken now to the sentence the Court imposes upon you.

On counts 1, 5 and 6 the Court sentences you to life in prison in the custody of the United States Attorney General. On counts 2, 3, 4 and 7, the Court sentences you to 20 years in prison on each count, the sentence on each count to run consecutively. (That's 80 years.)

On count 8 the Court sentences you to the mandatory 30 years, again to be served consecutively to the 80 years just imposed. The Court imposes upon you for each of the eight counts a fine of $250,000, that's an aggregate fine of $2 million. The Court accepts the government's recommendation with respect to restitution and orders restitution in the amount of $298.17 to Andre Bousquet and $5,784 to American Airlines.

The Court imposes upon you an $800 special assessment. The Court imposes upon you, five years supervised release simply because the law requires it. But the life sentences are real life sentences so I need go no further.

This is the sentence that is provided for by our statutes. It is a fair and just sentence. It is a righteous sentence.

Now, let me explain this to you. We are not afraid of you or any of your terrorist co-conspirators, Mr. Reid. We are Americans. We have been through the fire before. There is too much war talk here and I say that to everyone with the utmost respect. Here in this court, we deal with individuals as individuals and care for individuals as individuals. As human beings, we reach out for justice.

You are not an enemy combatant. You are a terrorist. You are not a soldier in any war. You are a terrorist. To give you that reference, to call you a soldier, gives you far too much stature. Whether the officers of government do it, or your attorney does it, or if you think you are a soldier, you are not-----, you are a terrorist. And we do not negotiate with terrorists. We do not meet with terrorists. We do not sign documents with terrorists. We hunt them down one by one and bring them to justice.

So war talk is way out of line in this court. You are a big fellow. But you are not that big. You're no warrior. I've known warriors. You are a terrorist. A species of criminal that is guilty of multiple attempted murders. In a very real sense, State Trooper Santiago had it right when you first were taken off that plane and into custody and you wondered where the press and the TV crews were, and he said:

'You're no big deal. '

You are no big deal.

What your able counsel and what the equally able United States attorneys have grappled with and what I have, as honestly as I know how, tried to grapple with, is why you did something so horrific. What was it that led you here to this courtroom today?

I have listened respectfully to what you have to say. And I ask you to search your heart and ask yourself what sort of unfathomable hate led you to do what you are guilty, and admit you are guilty, of doing? And, I have an answer for you. It may not satisfy you, but as I search this entire record, it comes as close to understanding as I know.

It seems to me, you hate the one thing that to us is most precious. You hate our freedom. Our individual freedom. Our individual freedom to live as we choose, to come and go as we choose, to believe or not believe as we individually choose. Here, in this society, the very wind carries freedom. It carries it everywhere from sea to shining sea. It is because we prize individual freedom so much that you are here in this beautiful courtroom, so that everyone can see, truly see, that justice is administered fairly, individually, and discretely. It is for freedom's sake that your lawyers are striving so vigorously on your behalf, have filed appeals, will go on in their representation of you before other judges.

We Americans are all about freedom. Because we all know that the way we treat you, Mr. Reid, is the measure of our own liberties. Make no mistake though. It is yet true that we will bear any burden; pay any price, to preserve our freedoms. Look around this courtroom. Mark it well. The world is not going to long remember what you or I say here. The day after tomorrow, it will be forgotten, but this, however, will long endure.

Here in this courtroom and courtrooms all across America , the American people will gather to see that justice, individual justice, justice, not war, individual justice, is in fact being done. The very President of the United States through his officers, will have to come into courtrooms and lay out evidence on which specific matters can be judged and juries of citizens will gather to sit and judge that evidence democratically, to mold and shape and refine our sense of justice.

See that flag, Mr. Reid? That's the flag of the United States of America . That flag will fly there long after this is all forgotten. That flag stands for freedom. And it always will.

Mr. Custody Officer. Stand him down.

Tags: 
Criminal Defense

BitTorrent Copyright Infringement Suit Securing Verdict Changes BitTorrent Suit Trends

 

Whether you are an adamant opponent of Internet Trolling, or a copyright holder trying to protect your work, a case tried earlier this month in Pennsylvania may change the climate of bittorrent copyright lawsuits altogether, shifting the online infringing environment. The case of Malibu Media v. Does, is the first case of its kind to go to trial, and will most likely set the pace for future claims brought under copyright law. While bittorrent cases, as in the Prenda Law cases, which received great attention last month, have entirely settled out of court, the verdict in Malibu Media stands as a symbol that bittorrent suits can and will be litigated from start to finish. The suit is also a wake up call for copyright law defense  attorneys, and their clients.

According to the Nashville City Paper, bittorrent lawsuits start with BitTorrent software, which is a platform for users to search for entertainment-based files, such as movies and music, and share them on a peer-to-peer network. BitTorrent software allows large files to be shared in segments from individual computes, rather than from one central server. Plaintiff copyright holders can find the Internet Protocol (IP) address connected to the shared copyrighted work and file lawsuits against the IP address owner, either in single defendant suits or in batches of defendants. After suit is filed, plaintiffs can then determine the identity of the IP address owners by subpoenaing internet service providers, who are required to notify the IP address owners that they have 30 days to either settle or quash the subpoena, or their identities will be released. If the IP address owner does not settle, or quash the subpoena, the plaintiff will then amend his or her complaint to add the name the IP address owner. In the case of the Prenda Law suits, the nature of the allegedly infringed work was pornographic. Thus, Prenda lawyers were able to secure a high volume of settlements, which later garnered much attention.

Likely due in part to the “hush-hush” nature of the Prenda Law cases, a bittorrent suit had never secured a verdict until now. According to a post by Jordan Rushie (counsel for Malibu Media) on Philly Law Blog, a Pennsylvania Judge ordered Malibu Media to take one of its copyright infringement cases to trial, to test whether it was an abusive bittorrent trolling case or not. Earlier this month, on June 10, Malibu Media lawyers proved that a bittorrent case could go all the way to a verdict when they secured a $112,500 verdict against one of the John Doe defendants named in the suit. This amount would be increased to around $500,000 after attorney’s fees.

The Malibu Media suit was a Bellwether Trial, meaning that it was essentially a sample trial to try the claims common to a large volume of plaintiffs to predict a trend in future suits brought on the same claim or theory. Mr. Rushie notes five things that he believes interested parties can take away from the Malibu Media trial:  

·         Copyrights will be enforced by courts, regardless of whether they are pornographic in nature;

·         BitTorrent lawsuits can be backed up by credible and reliable evidence;

·         IP addresses can be used as evidence that infringement occurred via that address;

·         The nature of the discovery process in civil litigation makes perjury and evidence tampering a very real concern for defendants trying to cover their tracks; and

·         BitTorrent attorneys must take BitTorrent suits more seriously now, and cannot simply advise to hide the evidence and offer a small settlement, or file a motion to sever or quash.

Whether you agree with Mr. Rushie or not, the fact remains that bittorrent lawsuits are clearly being taken more seriously by the courts, and, defendants accused of bittorrent copyright infringement must accordingly take serious steps to defend themselves against copyright infringement claims. If you have been named as a defendant in a copyright infringement suit, your best defense is to contact an experienced copyright defense attorney. Call the law office of Edward R. Molari today for a confidential consultation.

 

Tags: 
Criminal Defense

Commission on Theft of American Intellectual Property Proposes Malware Plan for Combating Copyright Infringement

 

Many computer users are haunted by the idea that they may be violating copyright laws. Not everyone on the web is tech-savvy, and numerous programs make downloading possibly illegal content easier than ever. Couple the ease and accessibility of illegal downloading with confusing copyright laws, and you have a recipe for illegal activity, even if the downloader is not intentionally infringing copyright laws. This week, the Internet is buzzing with news regarding a new proposal for combating infringing activity on the internet. The proposal is novel, invasive, and sounds like illegal activity in and of itself, but nevertheless has been introduced to the United States Government.

The Next Web reports that the US entertainment industry is getting behind a plan to send malware—software made to interrupt computer operation—to alleged infringers. The plan was unveiled in a proposal by the Commission on the Theft of American Intellectual Property, which was submitted to the US Federal Government. The plan would include installing software on computers that would identify whether the computer’s user was engaging in infringing activity, and would cause a “lockdown” of the computer by locking up the files until the “guilty party” turned his or herself into authorities. The proposal also includes the idea that the computer could be locked down with the condition that it would be unlocked when the user contacted authorities—effectively confessing to engaging in copyright infringement. An even more invasive part of the proposal suggests that the malware would include a program for snapping a photo of the computer user with his or her webcam.

The Next Web notes that even Japan, which is known for treating copyright infringement with a solid hand, has not resorted to the tactics in the proposal. File sharing has been illegal in Japan since 2012, and plan to crack down on infringing activity include imprisonment and “honey trap files” which are files made to look like popular television shows that contain alerts regarding the illegality of copyright infringement.

Slashgear.com has also weighed in on the Commission’s proposal, noting that the malware could enable entertainment companies and other copyright holders to do other invasive things, such as gathering, changing, and destroying data from a network, all without the permission of the computer’s user. Even with all this activity in mind, the proposal touts that it would not violate any current laws, but would rather act to stabilize a situation and get authorities involved. However, it is unclear whether the portion of the proposal designed to infect and destroy a computer falls into the “still legal” category.

In any event, both The Next Web and Slashgear.com appear to mirror the sentiment of many computer users, which is that such extensive and novel measures have come to be expected from the entertainment industry and other copyright holders. Still, the idea that downloading a movie or music might result in not only the destruction of one’s computer, but the immediate response of authorities and an instant confession to illegal activity is one that will not sit comfortably with many computer users.  

Copyright laws are constantly changing, and your activity on the web may be subject to legal action. If you have been contacted by anyone regarding a violation of copyright laws, your first line of defense is to contact an experienced copyright defense attorney. Call the law office of Edward R. Molari today for a confidential consultation.

 

Tags: 
Criminal Defense

"Will This Go On My Record?" Understanding CORI Access

I am frequently faced with clients trying their best to understand the potential consequences of a criminal charge, and what the outcome might mean for their future.  For such people, the question will often arise -- "is this going to show up on my record?"  It is an absolutely legitimate question, and it feels like one that should have a yes or no answer.

Unfortunately, the answer is always "kind of."  You see, every time a person is charged with a crime in Massachusetts, that fact is recorded in the Criminal Offender Record Information system, referred to as CORI.  This is maintained by the Criminal Justice Information Services division of the Executive Department of Public Safety and Security.  There are other "records" that you might want to worry about, like your interstate criminal record which is compiled by accessing various states criminal records, but access to this information is very limited.  Ordinarily, when an employer runs a person's background, what they are checking is the CORI system.

Employers, individuals, government agencies and corporations all have different levels of access to CORI information, which is what makes it hard to answer the question "will it show up on my record."  The answer is -- it depends on who is running your record.  If, for example, someone is charged with larceny, and that charge gets dismissed at their first pretrial hearing, police and courts will see that the person was charged, and that the charge was dismissed, but so will assisted living facilities, camps, local counsels on aging, day car centers, in-home care organizations, nursing homes, Massachusetts schools, Religious organizations, but only when they are checking records for people applying for employment or offering to volunteer.  Other employers will only see offenses that resuled in a conviction, or which are currently pending.

With that in mind, you can find all the details by taking a look at this chart, published by CJIS explaining the various levels of access to CORI information following the recent CORI reform law.  You can also call my office to discuss your concerns and find out what can be done to keep your record as clean as possible.

Tags: 
Criminal Defense

Pages