Courtroom Catwalk: The Middle Temple explores Legal Fashion

Courtroom Catwalk: The Middle Temple explores Legal Fashion

As a solicitor, my “legal fashion” normally consists of a black or blue dress, paired with a sweater and heels. But this fairly standard outfit worn by City lawyers like myself is quite a departure from those worn by our professional predecessors. Earlier this week, I visited the Middle Temple Library’s exhibit, Legal Fashion: From Mantles to Mourning Hoods to discover how English court dress has evolved over the centuries.

When the Romans left the British Isles in 425, they took with them their legal system. The Anglo-Saxon law which developed thereafter was based on Scandinavian and Germanic codes and folkright, and varied from village to village. It was not until after the Norman Conquest of 1066 that courts, or indeed any sort of trained legal professionals, began to appear in modern-day England (Maitland on English Law).

 

Read on to see nearly 1000 years of legal fashion…

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Lawyering in America and England

Lawyering in America and England

George Bernard Shaw once wrote, “England and America are two countries divided by a common language.” As an American who chose to pursue my legal career in London, I really enjoy considering legal issues from both an American and an English perspective, as I’ve done with Taylor Swift and defamation lawsuits, or the concept of celebrity “publicity rights”. But what about the differences in the legal system itself, or the education and training needed to become a lawyer? I’ve answered a few common questions below…

England and the United States are both “common law” jurisdictions. What does that mean and why does it matter?

Most legal systems are based on either Civil Code or Common Law. The system in which a lawyer practices can tell you a lot about their approach to their job, or legal philosophy more generally.

There are four main legal systems, including Civil (shown in blue) and Common Law (shown in pink). The other two systems are Religious law (Muslim, Jewish, etc) and Customary (indigenous, tribal, etc).

In Civil Law jurisdictions, which are also known as “Napoleonic” or “Roman” systems, the core principles are codified into a written collection of laws and procedures set out in the civil code. Lawyers are inquisitorial rather than adversarial, and it is the judge (or judges), who ask questions and demand evidence. In a civil law system, lawyers present arguments based on the evidence the court finds. The judge’s role is to establish the facts of the case and to apply the provisions of the applicable code.

Common Law, by contrast, puts great weight on court decisions, which are considered “law” with the same force of law as statutes. As such, common law courts have the authority to make law where no legislative statute exists, and statutes mean simply what courts interpret them to mean. In most scenarios, the two sides of a dispute argue before a neutral judge, who then makes a decision.

The United States, like most Commonwealth countries and former colonies, is an heir to the common law legal tradition of English law. Of course, certain practices traditionally allowed under English common law have been expressly outlawed by the American Constitution, such as bills of attainder and general search warrants. Practically speaking however, most Americans and Brits will have the same understanding of the roles of lawyers, trials, contracts, and much more.

Fun Fact: “Common law” derives its name from being common to all the King’s courts across England following the Norman Conquest of 1066. 

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Cisco v Arista: what next for computer programs and copyright?

Cisco v Arista: what next for computer programs and copyright?

Computer programs are functional, but they are also “literary works” that may be protected under copyright law. In December 2016, Arista Networks defended itself against a $335 million copyright infringement lawsuit from Cisco Systems. Cisco is now appealing the decision.

Cisco Systems, the largest networking company in the world, is trying to prevent Arista Networks from building ethernet switches which partially rely on technology copied from Cisco. Now on appeal before Federal Court in California (9th Circuit), the legal question is whether aspects of the particular technology deserves copyright protection in the first place.

ethernet switches connect devices together on a network

Copyright protects creative expressions of an idea, but not the idea itself. This “idea–expression dichotomy” therefore limits the scope of copyright protection. In an earlier blog post, The Copyright Between Oceans, I explained how the scène à faire doctrine was used as a successful defence in a copyright lawsuit regarding the novel The Light Between Oceans, and its subsequent film adaptation. When scène à faire (French for “essential scene”) is applied, common or typical plot developments are denied copyright protection. This means that broad themes, storylines and ideas which are common in a particular genre remain free for use by authors, screen writers, and other artists.

In the United States, computer programs are considered “literary works” under the Copyright Act, 17 U.S.C. § 101. Accordingly, scène à faire may be applied to preclude copyright protection from aspects of a computer program which are common or otherwise “dictated by practical realities.” Practical realities include hardware compatibility, manufacturer design, and industry practice. Arista’s defence turns on this concept.

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Google prepares for the first “Right to Be Forgotten” trials in England

Google prepares for the first “Right to Be Forgotten” trials in England

All human beings have three lives: public, private, and secret.
― Gabriel García Márquez

The European Union’s Court of Justice decision in Google Spain v Agencia Española de Protección de Datos, Mario Costeja González (“Google Spain”) confirmed the “right to be forgotten” for European citizens. This right is further enshrined in the upcoming General Data Protection Regulations (GDPR). Accordingly, European data protection law grants individuals a qualified right to have personal data relating to them removed from search engines.

This right is however considered by some to be a uniquely European phenomena, which resulted from one unusual CJEU judgement. Now, two upcoming cases against Google will be the first time in which the “right to be forgotten” will be considered by the English Courts. 

Two unnamed claimants, known only as NT1 and NT2, are bringing a companion case against Google to enforce their right to be forgotten. (NT1 v Google and NT2 v Google,  [2018] EWHC 67 (QB) (Rev 3))

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That robot took my theatre ticket!

That robot took my theatre ticket!

The UK’s Digital Economy Act 2017 is to be amended by the Breaching Limits on Ticket Sales Regulations, which will criminalise use of internet bots to bypass limits on ticket purchases set by event organisers. 

In practice, the problem is not necessarily how the tickets are purchased – by bots or otherwise – but rather, the crazy prices fans are forced to pay on the secondary market.

When tickets first go on sale for an event, they hit the primary market. If somebody resells their ticket, they do so on the secondary market. This secondary market is estimated to be worth more than £1bn ($1.4b) per year in the UK alone. When resales are done on a large scale or for considerable profit, it’s known as “touting” or “scalping”.

Touting in the digital age.  “Bots” are software applications that run automated tasks (scripts) over the internet, used for years to quickly buy up thousands of tickets at lightening speed. By way of example, American company Prestige Entertainment is alleged to have bought over 300,000 tickets in a two-year period. This included 30,000 Hamilton Tickets and, in another instance, bought over 1,000 tickets to a U2 concert in less than one minute (see Ticketmaster v Prestige Entertainment, case 2:2017cv07232).

High and dry.  When ticket supply is drastically limited, the bot masters (“power sellers”) can resell the bot-obtained tickets to fans at high mark-ups. Tickets for Radiohead’s 2016 show had a face value of £65, but were placed on Viagogo for £3,934. A ticket for Adele’s concert in London was listed on Get Me In! for an eye-watering £24,840.

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Facebook won’t stop the music

Facebook won’t stop the music

Before I started law school, I spoke to a lawyer at Universal Music about licensing, copyright, and other fascets of law pertaining to the music industry. Since becoming a lawyer myself, I’m even more fascinated by the ways in which commercial contracts, digital strategy, artists’ rights and expression interact with and shape each other: Facebook’s new global, multi-year agreements with Universal and Sony Music are perfect examples of such dynamism.

Facebook first inked a deal with Universal Music in late December 2017. The deal with Sony,  the largest music publisher in the world, was announced on 9 January. These deals allow Facebook and Instagram users to upload homemade video clips containing songs owned by Universal or Sony, without generating a takedown notice.

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New intern for the 1709 Blog!

Kelsey Farish Jan 2018.jpgI’m excited to announce that for the next six months, I’ll be an intern blogger for the 1709 Blog – a website dedicated to all things copyright. If you are familiar with IPKat, you may recognise CopyKat posts. I should be writing at least once or twice a month, and hope to focus on copyright issues which pertain to film and music. I will still be writing here at kelseyfarish.com but hope that you’ll check out the 1709 Blog, too! You can also follow the 1709 Blog on twitter.

In 1709 the Statute of Anne created the first purpose-built copyright law. This blog, founded just 300 short and unextended years later, is dedicated to all things copyright, warts and all.