Los Angeles Criminal Defense Lawyer David J.P. Kaloyanides, APLC

Stop Online Piracy Act-AKA censor the internet

David Kaloyanides — Wed, 14 Dec 2011 23:32:55 +0000

Much has been written about the Stop Online Piracy Act and the Protect Intellectual Property Act, HR 3261 and S 968, respectively. These two companion and competing bills are currently making their way through the maze of congressional committees before becoming a final bill to be reconciled each chamber’s version with the other. While much of the discussion has come from academics and civil practitioners in intellectual property law, the media attention seems to focus on the potential harm these bills, if enacted, would cause to the internet.

Here’s my take from a criminal defense perspective.

HR 3261 was referred to the sub-committee on intellectual property, competition and the internet on November 2. On November 16, committee hearings took place. No further action has taken place.

S 968: the last legislative action was when Senator Leahy filed a report with the committee on 7/22.

What does all this mean, and why do I begin with the status of these bills? In determining how likely a bill is to proceed through Congress, much depends on the committees and subcommittees that review it. A bill won’t go to the floor for a vote until a recommendation comes out of committee. And often the committee relies on the subcommittees. So, right now, the competing senate and house bills are still stuck in committee. But, it appears the House Bill is moving faster than the Senate bills. No surprise there-the Senate is usually slower than the House.

As of today, I understand that a new bill called the OPEN Act is being introduced in the House today. This is to move away from the judicial remedy for copyright holders and move the issue into the jurisdiction of the International Trade Commission, which already has authority (albeit limited) and power to address foreign commerce issues. Essential, the Courts are simply ill-equipped to handle the issue of on-line infringement.

HR 3261 has been revised to bring the language more in line with the Senate bill, 968. It is set for Judiciary Committee markup tomorrow.

So, let us look at the statutory language of HR 3261. Most of the provisions of the two bills relate to civil actions against sites posting infringing material. Section 102(b)(5) gives authority to the Attorney General to seek court orders for temporary restraining orders, preliminary injunctions and injunctions against sites and related entities. The newly revised language brings the bill into line with the Senate bill by making the target internet sites “dedicated to infringing activities.” Section 102(a)(3) makes such sites subject to seizure by the federal government.

The criminal penalties are addressed in Section 201 by amending 17 U.S.C. 506(a) to add the “public performance by means of digital transmission” language, thereby broadening the scope of conduct that would violate the statute. Section 201(a)(3)(A) adds language defining “work being prepared for” commercial dissemination (note: dissemination is different from the current language of “distribution”). Essentially, anything that is protected as copyrighted material could be argued to fall under this definition. My opinion is that this definition is overly broad and subject to constitutional challenge.

The bill also amends 18 U.S.C. 2319 broadening the criminal liability to include the “public performance by means of digital transmission” as additional offense conduct. The five-year statutory maximum provision of §2319(b)(1) simply adds the public performance offense conduct. Subsection (c)(1), the three-year statutory maximum provision, is amended to add the restriction that the infringement must occur within 180 days. Currently, there is no time period restriction for that subsection. The one-year (misdemeanor) provision of subsection (c)(3) removes the restriction on value. Now, any copyrighted work, even if it has no economic value whatsoever, falls under the misdemeanor provision.

The ten-year statutory maximum provision of subsection (d)(4) adds the requirement that the infringement be for the purpose of commercial advantage or private financial gain. And (f)(2) is amended to add the public performance language.

The bill also adds, significantly, a new subsection (g) that sets out the type of evidence that may be used to prove “total retail value.” This is very broad. It includes evidence of “what the public would have paid” if the work was purchased legally. As with the current problem of valuation in infringement cases, this type of evidence is often too imprecise to provide any meaningful guide to determine value. The new provision also allows evidence of the value to the infringer or the copyright owner to be introduced as a basis for determining the “total retail value.” Again, this does not provide much relevant information on the actual economic value of the work. The third type of evidence-evidence of the total fair market value of a license for the work-is as vague as the other definitions under this section.

Interestingly, the bill provides a defense of “good faith reasonable basis in law” that the infringer believed the conduct was lawful. This is a defense to the requirement that the infringement be willful.

It appears, as currently written, there are some constitutional arguments that might be raised against the bill. There are areas of vagueness, overly broad provision, and possible First Amendment “chilling” arguments to be made.

Even with the recent changes to HR 3261, the problems have not been addressed adequately. The bill, both the Senate and House versions, gives the Justice Department broad new powers to police the internet as a whole, not just authority to investigate and prosecute conduct violative of US law. It still allows non-governmental entities (the copyright holder) to attack sites and related internet service providers and advertisers if that entity merely has a good faith belief that infringing material is on the site. The recent change simply makes as a requirement that the entity get a court order. This is, in practice, little protection, because of the nature of the Temporary Restraining Order procedure. The bill still places significant and often unfeasible technological mandates on internet service providers-as ordered by a court (which will have very little real-world experience with these issues)-to prevent their services from being used to post infringing material. The chilling effect comes from the mere threat of litigation-not the litigation itself. Fighting a TRO or preliminary injunction is a very costly matter. The easier, faster, and cheaper way for the internet company to respond to such a threat is to simply shut down uploading and file sharing capability for its subscribers.

Finally, as some of my clients well know, the government can’t tell whether something is an infringement. It relies on the copyright holder to provide information that material is an infringement. The government simply takes the word of the copyright owner at face value. Non-governmental entities then secure information and evidence that the government might not have been able to get because of those little pestering rules of the Fourth and Fifth Amendment. The most significant danger these bills (and others like them) pose is the threat to innovation and competition. Without having legitimate access to other information, copyrighted material, competition and speech can be easily curtailed by a copyright holder who simply doesn’t want to have to deal with anyone else trying to build a better mousetrap.

We will have to see what the final bill looks like.

For a more interesting and colorful look at this issue, you can read this article with commentary and related articles on www.Antiquiet.com and specifically at http://www.antiquiet.com/features/editorials/2011/12/sopa-criminal-defense-attorney-analysis/

My “Window” Practice

David Kaloyanides — Wed, 01 Jun 2011 17:10:57 +0000

I spend a lot of time looking out the window. I look in the direction of trees, mountains when they’re visible, water, nature generally. But I’m not seeing any of it. I just look. Some think I’m a staring. But my gaze is unfocused, my eyes resting on nothing

I am thinking.

Random thoughts coalesce into ideas. The same thought rolling over and over again in my mind. Then an idea.

Sometimes the ideas are flashes of genius. Most of the time, however, the ideas are recognitions of the obstacles facing the situation. But this process of how I think helps me identify the obstacles, the pitfalls, the danger zones very clearly.

This is what I do.

Sometimes, these window sessions become legal briefs, motions, status letters, or just notes to the file.

Sometimes they go nowhere.

But this is what I do. This is how I work. This is the “product”, the service that I provide my clients.

My brain.

It is frustrating when a client wants to know what I am doing for them. Clients complain that I’m not doing anything because I haven’t “given” them anything-they haven’t “experienced” the representation. They want to “see” something.

My only conclusion is that this demand for a tangible product arises from the conditioning our society has created whereby consumers purchase “things”-“product.” They have hired me. They want some “thing” in return. This also is probably the reason behind the distain they have for me when I am appointed to represent them. If they aren’t paying me, they can’t expect to receive a “product” in return.

This is why people have a hard time paying for “services”-intangible but high quality benefits that they cannot see, feel, or touch. If it is not tangible, it must be of little or no value.

My clients, as with most of our society, have no understanding of what it is that I do.

My clients are happy to see my legal briefs, motions that I write, memoranda of legal analyses. But that satiates their need for a “product” for only so long. They are happy to receive these documents. But then they look at them blankly. They will read them. They will be impressed at how these motions “sound.” But they often have little understanding of the effect and purpose of these motions. Even when I explain how the motion fits our defense strategy, comprehension is still fleeting at best. They often return to their comfort zone of what they “think” their lawyer does and should do. They want to see their lawyer yelling at the judge, pounding the table, throwing papers up in the air in exasperation over the misconduct of the prosecution.

Real life criminal defense trials are simply not like that. And real life criminal defense practice is not full of excitement and drama.

When I visit the scene of a crime, when I inspect evidence at a police station, the DEA, or in a prosecutor’s office, my clients are not there. They don’t see the firing of neurons in my brain as thoughts become ideas, ideas converge into plans, and plans fit together as the foundation of an effective strategy. They don’t sit in my office and watch me read thousands and thousands of pages of investigator reports, witness statements, phone logs, transcripts from recorded conversations, audio and video surveillance tapes that go on for hours and hours and hours. They don’t look over my shoulder as I hunt through the thousands of pages of legal authority, case law, statutory interpretation, and all other resources to find the one piece of the legal puzzle, the nuance in the law that allows me to argue a point that may just save their lives.

They want the medicine, the pill, the shot that will solve their problem. They want the surgical procedure that makes their pain go away. They want to feel, see, hold the legal product.

They don’t want my mind. They don’t want my expertise. They don’t want my skill. They want some “thing.”

The practice of law is just not that way.

Most of my clients feel better when they see me in court. I stand in front of the judge, argue my point and show my client in public (although rarely if ever does the public show up) that I can persuade, that I know what I’m talking about, and for the most part that I am respected by the prosecution and the bench. But once again, the client’s satisfaction is brief. What is it that I am “really” doing? Am I “really” doing anything for them? They never see the preparation, the hours of reading, the research, the review of evidence, and, yes the long hours of looking out the window that it takes to be ready for that 10 minute appearance before the judge.

As frightened as my clients are of the prospect, they much prefer trial. In trial they see me day after day after day for long, long hours in the court paying very close attention, controlling the situation, objecting, arguing, questioning, cross examining, introducing evidence, preventing evidence from coming in, dealing with thousands of variables every day, every hour, every minute to make sure they are not convicted. Clients like that.

But they never see what it took for me to be prepared for each hour of trial. Until the day of trial, my clients simply think I’m not doing anything

Spending time with the client as important. Sometimes this helps the client understand how much work goes into preparing a defense even if the case results in a plea agreement. Spending time with the client, trying to understand them, listening to their story (often that’s what the client wants most-somebody to hear their side of the story)-all this helps build trust and understanding. Reviewing the evidence with the client, discussing the law, even preparing the client for trial, are all critical aspects in preparing a defense. But these are not the most efficient uses of my time. They are necessary, no doubt. Client-based representation requires client participation in their own case. For the client who is in custody, they want daily to sit down and play junior lawyer with me. For the client out of custody, they would prefer never to see me, never wanting to sit down and prepare their case at all. But the most effective use of my time is not sitting down in a cell or in my office with a client. Unless we are preparing the client’s testimony for trial, most of my work, all of the difficult work, takes place outside of the client’s involvement. It takes place behind a closed door in my office, at the scene of the crime, talking to witnesses, talking to investigators.

In preparing case, preparing my client’s defense, the hardest work, the most effective work I do for my clients is the time I spend looking out my window.

Fairness in Sentencing: the Crack/Powder Disparity

David Kaloyanides — Fri, 30 Jul 2010 21:43:15 +0000

Last March, the Senate unanimously passed Senate Bill 1789, which proposes significant changes to the Federal Sentencing for crack cocaine offenses. Under the prior law, possession and possession with intent to distribute crack cocaine is punished harshly — far more severely than the same offense involving powder cocaine. The statute, 21 U.S.C. §841, imposed mandatory minimum sentences for certain offenses involving particular controlled substances. For crack cocaine, current law imposed a minimum sentence of 5 years if the quantity of crack is at least 5 grams, and 10 years if the quantity is 50 grams. There is no discretion in this sentencing. The court must impose sentences as a minimum. This is a drastic difference when compared with powder cocaine, where the 5 year mandatory minimum sentence is triggered at 500 grams, and the 10 year mandatory minimum is triggered at 5 kilograms (5000 grams).

Senate Bill 1789, which was passed by Congress and signed into law by President Obama on August 3, 2010, eliminates the mandatory minimum sentence for simple possession. For offenses involving possession with the intent to distribute, the new law increases the quantity of crack cocaine required to trigger the mandatory minimum to 28 grams for the 5 year minimum and 280 grams for the 10 year minimum. The new law has changed the ratio difference in sentencing between crack cocaine and powder cocaine from the current 100:1 down to 18:1. The overall effect will reduce sentences for most crack cocaine offenses by approximately 30 months.

The United States Sentencing Commission has 90 days in which to submit amended guidelines to reflect the new ratio under the law for purposes of recommended sentences for such offenses.

The implications of the new law are far reaching. The grossly disparate sentencing treatment for crack cocaine has unfairly and unjustly affected predominantly African American defendants. As the Department of Justice finally conceded last year, there is no scientific basis for treating crack cocaine any differently than powder cocaine. Crack cocaine is cocaine base-the raw form of the drug. Cocaine in powder form is a refined and treated form of cocaine. While there is some minor chemical difference between the two forms of the same drug, there is no difference in the drug’s effects on a person. Crack cocaine, because of its form, is more easily ingested, but it poses no greater danger or harm than powder cocaine.

Under the new law not only will many low level drug offenders be free from the draconian sentence of the mandatory minimum scheme, many will not be subject to another unduly harsh aspect of the federal drug laws-the 851 enhancement statute. Under 21 U.S.C. Section 851, the 10 year mandatory minimum sentence can be doubled if the defendant has been previously convicted of any felony drug offense. Two prior such convictions results in a mandatory minimum sentence of life in prison. Accordingly, under current law, a conviction for 50 grams of crack cocaine would result in a required 10 year prison sentence. If the defendant had one prior felony conviction for even simple possession, the mandatory minimum sentence would be 20 years. If that defendant had two prior felony drug convictions, that defendant would be sentenced to life. And in the federal system there is no parole. A life sentence means life.

For this reason, the federal prison system is filled with people serving substantial time for non-violent felony drug offenses, some with sentences that exceed sentences of defendants convicted of violent crimes. And while the new law does not eliminate the mandatory minimum sentence nor the 851 enhancement, it does increase the amount of crack cocaine that triggers these severe sentences.

It remains to be seen what retroactive application the new law will have for those already serving sentences for crack cocaine offenses. However, there must be a strong push by the defense bar to seek review of all crack offenses to determine whether the defendants serving these sentences are entitled to relief under the new law.

SCOTUS requires Proof Beyond A Reasonable Doubt for Sentencing

David Kaloyanides — Fri, 28 May 2010 03:47:52 +0000

The Supreme Court of the United States firmly established that any factor in a criminal case that affects the sentencing exposure a defendant faces–anything that changes the possible sentence from the discretion of the judge–must be proven beyond a reasonable doubt or admitted by the defendant during a guilty plea hearing. Read the decision here: US v O’Brien Mandatory Minimum Sentence Factor is an Element of the Crime

Limiting the “Rights” under Miranda v. Arizona

David Kaloyanides — Mon, 03 May 2010 00:59:11 +0000

In light of the recent attempted Time Square bombing in New York City, the call to limit or even abolish the so-called Miranda-rights has gained support among those pushing for a harder line in the “War on Terror” and to remove any and all conduct related to terrorism out of the criminal justice system. Whether certain actions should be considered criminal and when those acts should be considered “war conduct” is a critical distinction in the application of different U.S. laws. The distinction between criminal conduct and “war conduct” implicates different rights for the individual. Rights for an individual accused of a crime are expressly stated in the Constitution, whereas individuals involved in “war conduct” are protected by certain rights under various treaties to which the United States is a signatory.

In looking at conduct that falls under the criminal justice system of the United States, the analysis begins with the express constitutional protections under the Fourth, Fifth and Sixth Amendments. At issue for Miranda are provisions contained in the Fifth and Sixth Amendments. Specifically:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . nor shall be compelled in any criminal case to be a witness against himself . . .”

Fifth Amendment to the Constitution.

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . and to have the Assistance of Counsel for his defence.”

Sixth Amendment to the Constitution.

The right to remain silent and the right to counsel are express rights set forth in the Bill of Rights to the Constitution. These rights attach to any person suspected of a criminal offense.

The confusion on the issue of the application of Miranda lies in the misunderstanding regarding what Miranda actually requires under the law. First, the Miranda-Rights apply only in criminal cases. Miranda is not implicate in “war conduct.” Those who support “limiting” Miranda misunderstand the law–the essential holding, the ruling of Miranda v. Arizona. Miranda does not create any rights. At its core, the holding of Miranda is that law enforcement must advise a suspect of his constitutional rights. It requires that any person suspected of criminal activity who is in what is called a custodial interrogation setting be advised by law enforcement of the existing constitutional rights under the Fifth and Sixth Amendment, viz. the right to silence and the right to counsel.

The Constitution created these rights for all persons within the jurisdiction of the United States. Nothing in either the Fifth or Sixth Amendment restricts these rights to “citizens” of the United States. Anyone within the jurisdiction of the United States (either within the territory of the U.S. or those who have committed a criminal offense against the United States or its inhabitants) and is brought within the criminal justice system of the United States enjoys the rights under the Fifth and Sixth Amendments. At its core, Miranda simply requires that people be advised of their right to remain silent and their right to counsel before they are subject to any custodial interrogation. In other words, before law enforcement may question a suspect in a setting in which a reasonable person would believe they are not free to leave, law enforcement must advise the person of those specific rights.

What most people do not understand is that Miranda does not prohibit questioning. The law under Miranda prohibits the use of information obtained from questioning in a criminal prosecution if law enforcement failed to advise the person of their Fifth and Sixth Amendment rights. As long as law enforcement does not seek to use statements of the person against them at the criminal trial (and any information gathered as a result of the incriminating statements), Miranda is not implicated.

Moreover, exceptions exist. In the context of alleged acts of terrorism, there is a well-established public safety exception. This exception applies when there is an imminent or immediate threat to an individual or the public, law enforcement may ask limited questions designed to alleviate that immediate threat.

The gist of this issue is not whether Miranda should be limited. The question is really how do we characterize conduct as either criminal or “war conduct” in order to determine what procedural rules should apply to ensure that due process rights are afforded the individual accused of the conduct. But to attack Miranda because of acts of terrorism is to ignore the fundamental rights of all people under the Fifth and Sixth Amendments to the Constitution.