California Bar Exam 》introduction

California Bar Exam 》introduction

I’ve decided to sit the California bar next year! While kelseyfarish.com will still largely be devoted to legal stories I find interesting, I thought it might be a good idea to keep a written record of my experiences, thoughts, predictions, and study strategy: these posts will be marked by the “California Bar Exam” category tag.

Why become dual-qualified? And why California? Although I’ve lived in London for nearly seven years and am licensed to practice law in England, I’m still an American citizen. I earned my Bachelors’ degree in the USA, and after studying law and politics fully intended to go to law school in the States. My original plans to spend one year in London to do a Masters degree changed when I met my now-husband!

It consider it something special to be qualified to practice law in your “home” jurisdiction. The American Constitution is very much a part of my professional and personal DNA: as I’ve become more and more involved in English and European law (especially in matters concerning media, expression, and privacy) the more interested I am in American jurisprudence.

Maybe it’s the academic in me, but I’m genuinely passionate and curious about legal theory and the practice of law. I also think being dual-qualified will make me a better lawyer, not least because the majority of my clients have some sort of international aspects which routinely touch on US law.

Currently, only a few states allow foreign-qualified lawyers to bypass American law school and sit the bar as “attorney applicants” – New York and California are two of the most popular. For boring administrative reasons* I’m not eligible to sit the bar in New York without doing an LL.M. in the States. California on the other hand only cares about the fact that I’m currently a lawyer in good standing in my home jurisdiction. So California it is!

Even if I was eligible to sit the NY bar, I do honestly think that I’d prefer to do it in California. My practice is focused on media, internet companies, telecoms, creative content, defamation, publicity, and privacy: so many interesting cases on those matters come out of California. Furthermore, I come across contracts subject to Californian law on a weekly basis. It would be great to be able to advise on those contracts, and not need to defer to US counsel! Plus, as a girl originally from the West Coast of the US, I’ve always believed known West Coast, Best Coast. 

There are three key components of the exam process:

1.  The Multi-state Professional Responsibility Exam, or “ethics exam” (MRPE). This exam can be taken in any one of 300 test centers around the USA, and is offered three times each year. I’m taking the exam in November, in New York City. My test results will be “uploaded” to California.

In July 2019, I’ll be off to Los Angeles to sit the California Bar Exam, which occurs over a two-day period:

2.  The California Bar Exam. Day 1 consists of five separate one-hour essays on a variety of legal topics, and one 90-minute practice test in which candidates are expected to work through a series of documents and produce some sort of memorandum or client letter. I’m still trying to figure out which points of California law specifically will be testable.

3.  The Multi-State Bar Exam. Day 2 is the MBE, which consists of 200 multiple-choice questions on seven subjects, based upon principles of common law and Article 2 of the Uniform Commercial Code (covering sales of goods). The questions are not broken down into sections and the seven topics are distributed more or less evenly throughout the exam. Candidates receive three hours during the morning session to complete the first 100 questions, and another three hours during the afternoon session to complete the second 100 questions.

The topics covered are:
• Business Associations
• Civil Procedure – topic on both Day 1 and Day 2
• Community Property
• Constitutional Law – topic on both Day 1 and Day 2
• Contracts – topic on both Day 1 and Day 2
• Criminal Law and Procedure – topic on both Day 1 and Day 2
• Evidence – topic on both Day 1 and Day 2
• Professional Responsibility
• Real Property – topic on both Day 1 and Day 2
• Remedies
• Torts – topic on both Day 1 and Day 2
• Trusts
• Wills and Succession

 

*Why not New York? According to Section 520.6 of the Rules of the Court of Appeals for the Admission of Attorneys and Counselors at Law, foreign lawyers must satisfy certain requirements to be admitted to the New York bar. In addition to passing the bar exam itself, applicants must have a “qualifying degree” that satisfies the educational requirements to practice law in a foreign country.

The normal route in England for aspiring lawyers is to do an undergraduate degree in law: the LL.B. They then do a year of law school (LPC) and two years of clerking (the training contract).

For students who don’t do the LL.B (for example. if they do history or chemistry and later decide to go into law) they can do a one-year “conversion” course known as the Graduate Diploma in Law (GDL) before doing the LPC. This was the route I chose, as – like many others – I did not do an undergraduate degree in law.

Unfortunately, despite being a qualified solicitor in England, the New York State Bar does not recognise the GDL as being a full “qualifying degree.” I can “cure” this by completing a 2-year LL.M. (a Masters’ degree in law) in the USA, but… nah. That’s not happening.

Chinese IPRs and Trade Wars

Chinese IPRs and Trade Wars

著作權 or Zhùzuòquán means “copyright” in Mandarin Chinese. Earlier this week, Chinese authorities kicked-off a campaign against online copyright infringement. Is this crackdown a response to increased pressure from foreign investors —and the Trump administration— for China to combat widespread piracy and counterfeiting?

The latest Jianwang Campaign Against Online Copyright Infringement was jointly launched by several government agencies including the National Copyright Administration of China, the Cyberspace Administration, and the Ministry of Public Security. It will target key areas for intellectual property rights (IPRs) including unauthorised republication of news and plagiarism on social media, broadcasting copyrighted content on video sharing apps, and setting up overseas servers to get around territorial restrictions. The campaign, which will last for at least four months, will also push internet service providers to enhance internal supervision systems.

Similar to the crackdown last September, the campaign is seen by many as an attempt to alleviate major concerns among foreign investors, including those in the United States. China’s lack of strong IPRs protection measures “frequently draw complaints from foreign investors and have been a long-standing focus of attention at annual talks with the US and Europe.”

The issue hit headlines again last autumn, when the Office of the United States Trade Representative led an official seven-month investigation into China’s intellectual property theft, under section 301 of the Trade Act of 1974. Bolstered by the USTR’s findings that “Chinese theft of American IP currently costs between $225 billion and $600 billion annually”, the Trump Administration imposed retaliatory tariffs on Chinese products in early July.

Pedestrians strolling past adverts for western companies in Shanghai. Photo: Tomohiro Ohsumi/Bloomberg

Considering 200 years of history: is “Chinese culture” to blame for copyright infringement?

According to the 2017 Situation Report on Counterfeiting and Piracy in the European Union, China has long been recognised as the engine of the global counterfeiting and piracy industry. Whereas software piracy rates for the European Union are 28 per cent, analysts at BSA | The Software Alliance believe nearly 70 per cent of computers in China run unlicensed software.

In 2012, an article on Forbes explained that “IP protection will always be an uphill struggle in China and for companies doing business there,” as individual rights –including IPRs– may be at odds with traditional Chinese society. What support does that argument have?

Firstly, it’s important to note that IP is not an indigenous concept in China. Historically speaking, the lack of a strong IP regime can be traced to the early roots of China’s economic system, which emphasised agriculture and generally neglected large-scale commerce. Before the Opium War (1839-1842), foreign powers were unconcerned with the lack of IP protection in China primarily because there was little foreign investment there to protect in the first instance. Furthermore, the main European exports to China at the time were unbranded bulk commodities, and not technological innovations or creative works such as software, film, and music.

During the Chinese Revolution, Mao Zedong’s Communist Party abolished all legal systems in 1949. Throughout the Cultural Revolution of the 1960s and 1970s, China lacked any semblance of a functioning legal system. As per Communist political ideology, “Law” in China during this time was guided by general principles and shifting policies, rather than detailed and constant rules.

When chairman Deng Xiaoping adopted an open-door economic policy in the late 1970s, China’s trading partners were no longer restricted to the USSR and Soviet satellites, but instead now included Western countries. Several years later, the Communist party officially pronounced that the Cultural Revolution had been a grave error, and began to shift its economic and social reforms. To support its burgeoning and rapid economic development, China accordingly began to embrace a formal IPR strategy. When China joined the World Trade Organisation in 2001, it became bound by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Enhancing the protection of intellectual property rights is a matter of overall strategic significance, and it is vital for the development of the socialist market economy.

—Li Keqiang, Premier of the People’s Republic of China

The Wall Street Journal further explains that, incentivised by the influx of foreign technology and media companies wishing to invest in China, IPR protection in the country has been rising steadily for the last decade. In 2006, there were approximately 6,000 copyright lawsuits: in 2016, that number had multiplied nearly 15 times over to 87,000 cases.

If Chinese IP law is increasingly comparable to European and American standards, why then does China continue to attract disapproval?  

Although the rate of unlicensed or “pirated” software in China is nearly 70 per cent, the piracy rates in Indonesia, Pakistan, Vietnam, Albania, Belarus, Ukraine, Bolivia, Algeria, Botswana, Zimbabwe and many others is much higher. However, because Chinese economy is behemoth, and uses an incredible amount of software, the value of such pirated software is over $6.5 billion.

Secondly, although true that Chinese IPR enforcement is catching up to U.S. and European standards, considerable weakness remains in the high levels of bureaucracy. For example, court decisions might apply on a provincial level rather than nationally, and judges often have different interpretations of the laws.

a farm in Altay Prefecture, China. 42 per cent of people in China live in rural communities. Photo: @linsyorozuya

Of China’s 1.5 billion residents, nearly 600 million live in rural communities. While central authorities may establish the laws and regulations, it is the local authorities tasked to implement those laws and regulations. It is therefore important to note that local protectionism probably constitutes the largest obstacle to cracking down on piracy in China.

Finally, from a sociological perspective, it could be argued that English-language media promotes an inaccurate portrayal of IP piracy as somehow rooted in Chinese culture and Otherness. To be fair, European and American copyright law is also plagued with intense debate and woeful inadequacies surrounding the evolution of online technologies.

IP is a complex area of law, and for a variety of reasons copyright is perhaps one of the most difficult areas to legislate. China still has a long way to come in respect of is IPR regime, a sentiment acknowledged by Beijing. However, the danger of perpetuating snippets and sound bites without adequate context is non-trivial. IPR policy affects United States foreign policy, and incorrect understanding the problem can lead to disruptions in international relations, or even trade wars.

 

featured image photo of Shanghai: @Usukhbayar Gankhuyag

Social network, media company, host provider, neutral intermediary… what’s in a name for YouTube?

Social network, media company, host provider, neutral intermediary… what’s in a name for YouTube?

Media companies who call themselves social networks will have to recognize that they, too, have to take on responsibility for the content with which they earn their millions.

-— Markus Breitenecker, CEO of Puls4

Who is to blame, if someone records TV programmes and illegally uploads them to YouTube: YouTube, or the individual? According to the Commercial Court of Vienna, YouTube is jointly responsible for copyright breaches from user-uploaded content. Is this einer Entscheidung, die das Internet revolutionieren könnte – a decision that could revolutionize the Internet?

To date, the unanimous opinion of European case law supports the position that YouTube is only a platform, an intermediary, a service provider, a neutral host, and so on – and therefore could not bear the responsibility for stolen content. That’s no longer true, says the Handelsgericht Wien (Vienna’s Commercial Court).

In its judgement of 6 June, the Court handed Austrian TV broadcaster Puls4 a key victory in its four-year legal battle with Google-owned YouTube. In 2014, Puls4 had sued YouTube for allowing Puls4’s stolen content to appear on the YouTube platform. YouTube responded by asserting the Host Provider Privilege set out in Article 14 of the E-Commerce Directive 2000/31/EC, which in certain situations shields host providers from being held responsible for the actions of its users.

The Americans have a similar provision in the Online Copyright Infringement Liability Limitation Act (OCILLA), which forms part of the Digital Millennium Copyright Act. The OCILLA creates a conditional “safe harbor” for online service providers by shielding them for their own acts of direct copyright infringement, as well as from potential secondary liability for the infringing acts of others. In exempting internet actors from copyright infringement liability in certain scenarios,  both Article 14 and the Safe Harbor rule aim to balance the competing interests of the copyright holders, and those who use the content online.

Where YouTube is simply a host provider, it is the individual who uploaded the video in the first instance who is to blame for the theft of copyrighted material. This time, the Court disagreed with YouTube’s argument, and has found finding the media giant to be jointly responsible for the copyright infringement.

So, why should we care about the Puls4 case? Although Austrian case law is not binding for other European Union member states, the Commercial Court’s judgment sets a precedent for denying Host Provider Privilege to YouTube. This may encourage similar decisions in the future which are based on the same line of argument.

Speaking to German newspaper Der Standard, Puls4’s CEO Markus Breitenecker explained that YouTube had effectively abandoned its neutral intermediary position and assumed an active role, which provided it with a knowledge of or control over certain data. In European legislative parlance, this is known as being a false hosting provider or false intermediary.

For years, many of us have assumed that YouTube is just a inanimate platform to which users upload videos. This case underscores that YouTube can no longer “play the role of a neutral intermediary” because of its “links, mechanisms for sorting and filtering, in particular the generation of lists of particular categories, its analysis of users’ browsing habits and its tailor-made suggestions of content.”

Puls4 and YouTube have until early July to petition the court, before it issues its binding ruling. In a statement to The Local Austria, YouTube said it was studying the ruling and “holding all our options open, including appealing” the decision.  In the meanwhile however, YouTube noted that it takes protecting copyrighted work very seriously.

If the preliminary decision is upheld, YouTube must perform a content check upon upload, instead of simply removing copyright infringing content upon notification. In respect of this, the Viennese court stated that “YouTube must in future — through advance controls — ensure that no content that infringes copyright is uploaded.” It is therefore rather timely that YouTube began beta testing a feature called Copyright Match last month, a tool which allows users to scan the platform to locate full re-uploads of their original videos on other users’ YouTube channels.

Screenshot 2018-06-28 at 10.29.54 PM
some Puls4 content is still available on YouTube (at least, here in the UK).

The European Parliament seems to think the arguments about false hosting providers is best left to the courts to decide. Despite the E-Commerce Directive being more than 15 years old, there is no pressing need for a reform. In a recent report on the matter,  the European Parliament’s Committee on the Internal Market and Consumer Protection stated that while false hosting providers may not have been envisaged at the time of the adoption of the E-Commerce Directive in 2000, “the delineation between passive service providers caught by Article 14 and active role providers remains an issue for the court.”

 

 

American Copyright law to get 21st century remix

American Copyright law to get 21st century remix

In my previous post, I wrote about the European Union’s sweeping new Directive on Copyright in the Digital Single Market, which is currently in draft stages. But copyright legislation is getting an update on the other side of the pond, too.

Since 1909 — before recordings of music even existed — Section 115 of the Copyright Act has regulated the licencing of musical works. Many songwriters and music publishers have trouble collecting royalties for the use of their songs played via digital streaming services. Amongst other things, the proposed Music Modernisation Act will modernise how compensation for mechanical licenses, which include digital streaming, is determined.

Last week, The United States House Judiciary Committee voted unanimously (32-0) to approve House Bill 4706, “to provide clarity and modernize the licensing system for musical works under section 115 and to ensure fairness in the establishment of certain rates and fees.” More commonly known as the Music Modernization Act (“MMA”), the bill now heads for consideration by the full House of Representatives. The MMA has received wide bipartisan support from Democrats and Republicans alike, and appears to be “on the fast track” for approval.

Importantly, the MMA will create an American agency or “mechanical licensing collective” that would house all music publishers under one roof. It is expected that the agency will have a database of ownership information, which will increase transparency and help identify music creators who are owed royalties.

Once established, the digital streaming services will pay the mechanical licensing collective, which in turn tracks and collects royalties on behalf of the artists. As explained by Committee Chairman Bob Goodlatte (a Republican from Virginia), the MMA “boosts payments for copyright owners and artists by shifting the reasonable costs of a new mechanical licensing collective onto digital music services, who themselves benefit from reduced litigation costs as a result of other provisions in the bill.”

Speaking to ABC news, John Simson noted that Americans “…have a 1909 statue trying to govern 2018 technology, and it doesn’t work.” Mr Simson is a professor at the American University and founding member of Sound Exchange, a non-profit organisation set up to collect and distribute performance royalties.

Intellectual Property Subcommittee Vice Chairman Doug Collins (a Republican from Georgia) noted that “the current music licensing landscape undervalues music creators and under-serves music consumers. Outdated copyright laws have produced unnecessary liabilities and inefficiencies within the music licensing system, and stakeholders across the music industry have called for reform. This bill moves the music industry towards a freer and a fairer market, enabling it to leverage the present and future benefits of the digital age.”

  • The first section of the bill concerns how modern digital music services operate, and will create a “blanket licensing system” to quickly license and pay for musical work copyrights. A key aim includes discouraging lawsuits in favour of simply ensuring that artists and copyright owners are paid in the first place without such litigation (see “No lawsuits over unpaid royalties after 1 January 2018?” below).
  • The second section, “Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society (CLASSICS) Act” will focus on public performance rights for pre-1972 recordings. In particular, musicians with pre-1972 recordings will receive royalty payments when their tracks are played on the radio, online, or on television.
  • The third section, “Allocation for Music Producers (AMP) Act,” will ensure that record producers, sound engineers, and other creative professionals also receive compensation for their work.

No lawsuits over unpaid royalties after 1 January 2018?
Of course, the MMA is not without its detractors who are quick to point out several key issues. Firstly, the bill sets out a broad limitation of liability clause which essentially shuts down any potential lawsuits filed after January 1st 2018. That’s not a typo – Section 2(10)(A), the MMA really does apply a retrospective restriction on legal action.

Without the possibility of litigation, songwriters (and other copyright holders) who have unpaid royalties have one sole and exclusive remedy: they must go through the process set out in the legislation, governed by the dispute resolution committee of the mechanical licensing collective.

And while the mechanical licensing collective created by the MMA will have a board of directors, that board will be comprised of ten music publishers (record labels) together with only four songwriters! Furthermore, as currently written, the MMA provides no grievance process for excluded writers and those who receive unjust treatment. Is this likely to hit the right note with independent artists and smaller record labels?

 

Featured image – Francis Barraud, His Master’s Voice.