Monthly Archives: July 2010

North Korea’s World Cup Team Faces Shaming, and the Coach Becomes a Political Prisoner

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Probably no country on earth would be too thrilled with a World Cup team that strikes out with three straight losses, but while other teams with unsatisfactory performances in South Africa faced sanctions that included suspension from a few games, as the French squad was, the stakes were much higher for the North Korean team.

No, they weren’t executed. (It seems that a lot of people have been wondering about that, judging from the number of hits this blog gets from search terms such as “did they kill the North Korean soccer team”). Even North Korea would not be that stupid or brutal, I hope. And the players, at least, escaped being forced into prison camps.

But they were subjected to a six-hour shaming session:

The entire squad was forced onto a stage at the People’s Palace of Culture and subjected to criticism from Pak Myong-chol, the sports minister, as 400 government officials, students and journalists watched.

The players were subjected to a “grand debate” on July 2 because they failed in their “ideological struggle” to succeed in South Africa, Radio Free Asia and South Korean media reported.

It wasn’t quite the entire squad — the two North Korean players with Japanese nationality escaped the punishment, probably because they (quite astutely) did not return to North Korea, but instead went straight back to Japan.

The Chollima’s coach was not quite so lucky, though. The players were forced to publicly blame him for their loss, and to criticize his performance. The punishment did not end there:

The team’s coach, Kim Jong-hun, was reportedly forced to become a builder and has been expelled from the Workers’ Party of Korea.

This is putting it euphemistically. North Korea’s labor camps are every bit as harsh, as you might expect. I suppose North Korea could not put its best football players in the prison camps if it ever hoped to field a decent team again, but maybe they figure they will still be able to find someone willing to serve as a coach even under the threat of being sent away to a work camp.

The coach was punished for “betraying” Kim Jong-un – one of Supreme Leader Kim Jong-il’s sons and heir apparent.

It’s interesting, though, that the alleged “betrayal” was not of Kim Jong-il, but of his son. There has been a lot of speculation lately that North Korea’s recent impulsiveness and erratic behavior (well, more impulsive and erratic than even North Korea usually is) has been a result of a potential regime-shake up that is laying the path for Kim Jong-un’s eventual succession of his father.

Despite the harsh treatment the players and coach suffered, it is no surprise that North Korea did not have any staff or teammates defect in South Africa. In contrast with teams from nations such as Cuba, where such defections are relatively common, defections from North Korea are rarer — because North Korea holds hostage the family members of its nationals who go abroad. If a member of the North Korean team had tried to defect, he would do so knowing that his actions would essentially amount to a death sentence for his kin back home.

-Susan

A Nation’s HTML Source Code Doesn’t Lie — North Korea is STRONG

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When I decided that, henceforth, sovereignty was to be determined through the Website Theory of Statehood, whether or not an entity qualified as a state was based upon the visual appearance of the would-be state’s online presence. Perhaps, though, the theory should be expanded to take a state website’s source code into consideration.

Case in point, North Korea. From The Daily WTF, check out the website coding behind North Korea’s homepage:

If North Korea throws in just a couple more <STRONG> tags, it will surely reach global super power status. Dear Leader is an Internet Genius.

-Susan

Show Me the Burrito: How the “Chipotle Experience” Violates Federal Law

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On Monday, the Ninth Circuit Court of Appeals issued an interesting decision in Antoninetti v. Chipotle [PDF].  Incredibly, the decision finds that Chipotle violated the Americans with Disabilities Act (ADA) by failing to provide customers with the full “Chipotle experience,” which includes seeing one’s food prepared.  This one is a sad loss for the geniuses that brought us the barbacoa fajita burrito bowl with guac.

The Ninth Circuit determined that part of the essence of Chipotle is walking down the cafeteria-style line and watching the burrito goodness get put together.  Unfortunately for wheelchair bound individuals, however, burrito gazing is impossible for those lower to the ground, as a high dividing wall separates customers from their foody delights.  The panel concluded, in an opinion authored by Judge Friedman, that burrito-gazing is an interest protected by federal law:

In these circumstances, the wall conceals the food preparation counter from wheelchair-bound customers and thus prevents those customers from having the experience of non-disabled customers of fully participating in the selection and preparation of their order at the food preparation counter. The wall subjects them to a disadvantage that non-disabled customers do not suffer.

. . .

As noted, the presence of the wall in the two restaurants significantly reduced Antoninetti’s ability to enjoy the “Chipotle experience.” From his wheelchair, he could not see and evaluate the various available foods and decide which or how much of each he wanted. He also could not watch the food service employee combine those ingredients to form his order.

Predictably, conservatives are frothing at the mouth because this panel included the eeeeeeevil Judge Stephen Reinhardt.  I think it’s unfair to blame this one on Judge Reinhardt, but this case does strike me as a bit silly.  It’s hard to put a finger on what actual injury the plaintiff suffers in this case, a point that the panel somewhat meekly dismisses.  Moreover, Chipotle also made a real effort to accommodate those with disabilities.  Indeed, Chipotle established a formal policy stating that employees should (1) show samples of the food to the customer in small cups; (2) allow the customer to see or sample the food up close; (3) describe the food preparation process to the customer; or (4) prepare the food at the customer’s table or at the end of the food preparation area (where the counter is lower).  The Ninth Circuit nevertheless rejected these alternatives:

The substitutes that Chipotle provided—showing him samples of the individual foods in serving spoons, held in tongs or in plastic cups, or assembling the food at the “transaction station” or at a table in the seating area—do not constitute “equivalent facilitation” because they do not involve “use of other designs and technologies” or “provide [him with] substantially equivalent or greater access to and usability of the facility.” They merely provide a substitute experience that lacks the customer’s personal participation in the selection and preparation of the food that the full “Chipotle experience” furnishes.

So federal law protects not just a “burrito experience,” but a complete burrito experience?  Hmmm . . . I’m going to step out of my lawyer shoes for a second and say that — even putting aside whatever the statutes or regulations say — this result seems just plain weird.

It will be interesting to see if this theory is advanced in other food contexts.  Is the counter at the Starbucks too high to enjoy the “barista experience?”  Is the counter at Subway too high to see the sandwich artists at work?  Only time will tell.

Lastly, I would note that the opinion includes perhaps the first picture of a Chipotle in an appellate opinion.  Admittedly, it’s not the coolest picture* to appear in an appellate opinion, but it nevertheless strikes me as a bit funny.

-Michael

*That honor goes to the picture of a lion eating a birthday cake made of horse meat in Judge Posner’s opinion in Cavel International, Inc. v. Lisa Madigan [PDF], 500 F.3d 544 (7th Cir. 2007).

Paul, International Octopus of Mystery, Is Declared an Enemy by Iranian President

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Poor Paul. Who would have guessed that a psychic cephalopod could have so many enemies?

Paul, a two year old Octopus vulgaris, acquired world-wide notoriety after he correctly predicted the winner of all seven of Germany’s World Cup games, as well as the final between Spain and the Netherlands. For this feat, he received death threats from the nationals of teams Paul predicted to lose, including, eventually, threats from fellow Germans after he correctly predicted their defeat by Spain.

Even after retiring from predicting the outcome football matches, Paul has continued to make enemies. Not least among these is the fearsome and blood-thirsty Team Edward, who turned on Paul after he declared his allegiance to Team Jacob.

And now Paul is being attacked by the nation of Iran. In a speech in Tehran, President Ahmadinejad declared that Paul is a symbol of Western corruption and folly, and that only nations that despise psychic octopuses are worthy of being global powers:

[T]he Iranian president accused the octopus of spreading “western propaganda and superstition.” Paul was mentioned by Mr Ahmadinejad on various occasions during a speech in Tehran at the weekend.

“Those who believe in this type of thing cannot be the leaders of the global nations that aspire, like Iran, to human perfection, basing themselves in the love of all sacred values,” he said.

This is not the first time that Paul has gotten involved with national politics. Although the results have been sealed until 2012, Paul has also predicted the outcome of Russia’s next presidential election.

Of course, not only Western nations have fallen under Paul’s spell. China has gone Paul-crazy. Chinese film-makers even made a movie about Paul and “how the octopus acquires the ability and discuss his possible fates.” Admittedly, it’s hard to tell if the movie is an homage or a threat: the title is ‘The Murder of Paul the Octopus.’

Not to spoil anything, but my guess is the lead suspect will be Mahmoud Ahmadinejad.

-Susan

Player Piano Roll Copying is Killing Music (And It’s Maybe Illegal)

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The story of copyright law in the United States is, in many ways, one chapter after another about the entertainment industry’s hyperbolic overreaction to the latest developed technology.

Today, the dispute may be about the Kindle’s automatic audio-production of e-texts, or about a 30 second clip of a baby dancing to Prince on YouTube. Before that, the great new threat to the existence of music was Napster. And before that, the movie industry was convinced that the VCR would soon put an end to Hollywood, and it took the Supreme Court to keep home recording legal. And so on and so on.

But perhaps the great granddaddy of all modern day copyright disputes was the development of the player piano:

Yes, that’s right, that dastardly player piano, with its automated paper piano rolls that could play songs without musicians. The fear was so great that lots of lobbying was done of Congress, leading to the 1909 Copyright Act, which brought about compulsory licensing on mechanical rights. Of course, within about a decade, the infatuation with the player piano was gone, but compulsory mechanical rights were stuck in US law and no one ever thought to question if they were really needed.

The copying of player piano rolls may not cause the entertainment industry to sic its litigation team on you today, but copyright laws are impeding the preservation of musical history. Even songs that were in the public domain in Shakespeare’s time cannot today be copied from a player piano roll, because the copyright in the roll itself still exists. Here’s what one would-be infringer was told when he contacted a company that makes player piano rolls to ask about putting recordings on the internet:

A very nice and patient man answered the phone, and I explained what I wanted to do. I explained that I would be sure to use a song that was an ancient melodie which had to be out of copyright by now, and I only wanted to do a few songs, perhaps “Greensleeves” and some ragtime melody that used a mechanism in my player piano called the “mandolin”. The nice man replied that Greensleeves was indeed out of copyright, but that the artist’s rendition of my Greensleeves roll might not be out of copyright. I began to feel the hackles on the back of my neck stand up.

The nice man continued by saying that the rendition of Greensleeves had been put onto a roll of paper, and that too included a copyright, so other player piano roll manufacturers would not just buy one roll, copy it, and sell it to other player piano owners.

The only thing shocking about this story is the fact there is still a company out there that manufactures player piano rolls.

-Susan

Grove’s Tasteless Chill Tonic, a Household Necessity

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While researching issues involving judicial notice, I came across one holding that caught my eye, mostly because I had never heard of the product referenced:

“[C]hill tonic is still considered a necessity in many households and it is a matter of common knowledge that it is almost an indispensable article in all commissaries.” Walter J. Bryson Paving Co. v. State, for Use of Lewis Bear Co., 111 Fla. 394, 149 So. 563 (1933).

It does raise an interesting point about judicial notice, though; how common must ‘common knowledge’ be for its proof to be assumed in the absence of any evidence? And how long does common knowledge continue to be common in the face of technological change? Grove’s Tasteless Chill Tonic was already in its twilight years by 1933, no longer as ubiquitous as it once had been, as is acknowledged in the opinion. Can information be adopted by the court through judicial notice when generations younger than the judges wouldn’t have a clue what they’re talking about?

Today Chill Tonic is an obscure bit of history, but it turns out Grove’s Tasteless Chill Tonic was the Band-Aid or Tylenol of its time. Malaria was still common in the South in the 19th and early 20th centuries, and Chill Tonic was a more palatable form of quinine, the only known malaria medication of the time:

Grove’s Chill Tonic may not have been exactly tasteless, but in 1878 he suspended quinine in liquid form. In other words, the ingredients in Grove’s Tasteless Chill Tonic were not soluble, but suspended in the syrup. The tonic became an overnight sensation and a household name for decades. …

Grove’s Tasteless Chill Tonic was created not as a cure, but as a preventative and relief of malaria and its resulting chills and fever. Those who remember taking the chill tonic did not agree with the “tasteless” billing, although it was better than taking straight quinine. Quinine has been used for more than three centuries and, until the 1930s, it was the only effective malaria treatment. The chill tonic was so popular the British army made it standard issue for every soldier going off to mosquito infested lands and, by 1890, more bottles of Grove’s Tasteless Chill Tonic were sold than bottles of Coca-Cola.

Grove’s brand of tonic also had an incredibly disturbing logo, pictured here. Somehow, I don’t see either the pig-baby logo or the slogan “makes children and adults as fat as pigs” doing all that well in a marketing campaign today.

Perhaps, though, there is a lesson for the modern day to be had from the story of Chill Tonic:

“I had a little drug business in Paris, Tennessee, just barely making a living, when I got up a real invention, tasteless quinine. As a poor man and a poor boy, I conceived the idea that whoever could produce a tasteless chill tonic, his fortune was made.”—E.W. Grove

And make a fortune he did, although while his chill tonic was still in the experimental stage, North Poplar Street neighbors in Paris sometimes became upset with Grove as odors drifted from his pharmaceuticals bubbling in a kettle outdoors. Ironically, some of these families, including the O.C. Barton’s, became millionaires after investing in Grove’s Paris Medicine Company.

Maybe Steptoe and Johnson should stop its war on delicious burgers and try investing in Rogue States instead.

-Susan

A New Kind of Burger War: Steptoe & Johnson v. Rogue States

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Lately, it seems like Dupont Circle has been overrun with trendy burger places:  BGR, the Burger Joint; Rogue States: A Burger Grilling Company; and (soon) BLT Burger.  When I’m hankering for a burger in my neighborhood, I’ll often head to traditional favorite Five Guys.  But if I’m in the mood for a fancy-pants burger, my pick is Rogue States, which has late night hours, tasty brews, and awesome fries (which include some very addictive flavored mayo).

My favorite trendy burger now faces a new foe:  powerful D.C. law firm Steptoe and Johnson.  Apparently, Steptoe is getting a little too much delicious flavor from Rogue States, in the form of fumes overrunning its offices.  BLT: The Blog of Legal Times (unrelated, of course, to BLT Burger) explains:

Steptoe & Johnson LLP is fighting with a high-end hamburger restaurant in a building near its Northwest Washington offices over whether fumes from the restaurant are causing health problems for the firm’s employees.

Steptoe and the owner of its office building have asked a D.C. Superior Court judge to issue an injunction barring Rogue States, a Burger Grilling Company, from continuing to emit smoke and odors. Judge John McAdam Mott is expected to make a ruling on that request this afternoon. The owner of the building where Rogue States is located was also sued.

In the firm’s complaint, which was filed on March 10 by Pillsbury Winthrop Shaw Pittman partner Deborah Baum, Steptoe contends that the exhaust system at Rogue States’ 1300 Connecticut Ave. N.W. location, which is near the firm’s 1330 Connecticut Ave. N.W. office, dumps smoke and fumes from the restaurant into the firm’s air-intake system. As a result, the complaint says, “Steptoe employees have reported health-related effects in connection with the smoke and food odors, including but not limited to headaches, nausea, dizziness, watery and itchy eyes, drowsiness and distraction.”

Drowsiness?  I know I get sleepy after eating a big burger, but not after just smelling one.

Regardless, things are not looking good for Rogue States.  At a hearing in D.C. Superior Court yesterday, Judge Mott declined to issue an injunction against the delicious-but-noxious-fume-generating activity going on at Rogue States.  But he did say he would issue a later ruling that would likely end grilling operations if the parties cannot reach an agreement by August 10.

If this issue goes to trial, I would recommend Rogue States hire local beef litigation specialist attorney Arthur C. Burger.

-Michael

Update: A commenter at the ABA Journal provides a limerick for the occasion:

Odiferous fumes from defendant were oozing
and caused, said the plaintiff, our snoozing!
But having won an injunction
wondered head partner, at luncheon
Have we any other excuses for losing?

Edit, by Susan: Rogue States could also hire P. Hamburger, Esq..

Or maybe they should just go with the Hamburger Law Firm, they’ve got to be experts in this kind of litigation.

This is What a Forged Check for Half a Million Dollars Looks Like

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There are quite a lot of scams out there that specifically target law firms. Most of them are variations on the 419 scam, and pretty obvious too boot — such as the business offers from wealthy princes in Nigeria — but apparently there is a slightly more sophisticated version going around right now. Here is a description of the how the scam starts:

The email memo arrives at the law office, and sounds like many others that arrive during the day soliciting legal services. A potential commercial client, albeit located overseas, needs some legal assistance collecting on debts from their customers located in the U.S. They may be willing to pay on a contingency fee basis or hourly basis. They explain that generally their slow paying customers will pay once counsel is obtained in the U.S. and a little bit of pressure is applied. It makes sense, the law firms sends off a client fee agreement and it comes back signed. Later names and addresses, and perhaps telephone numbers of several customers located in the U.S. arrive at the law office. Due diligence performed by the law firm on the internet indicates that the new client is a major manufacturer in Europe or Asia. The web pages of the customers are similarly impressive. A telephone call indicates that the slow paying customer is willing to pay the client via the law firm. The cashiers check arrives shortly. It seems to be a potentially lucrative client for the lawyer.

And apparently a few firms out there have fallen for it, or at least enough for the FBI to see fit to issue a warning about it.

This happened to my firm last week. We were contacted by a potential client who claimed something very much like the above — a foreign company was looking to collect on a Virginia company, and needed to retain counsel. We were immediately suspicious, primarily because it was a foreign client contacting us without a referral, but there was nothing to blatantly mark it out as a fraud. So the firm did respond, and we started up a correspondence with the company.

Of course, just a couple days later it was made abundantly clear that it was all a scam, when the “client” informed us that, after they had emailed the website bios of two of our attorneys to the would-be defendant, the company had been so thoroughly intimidated that that they immediately agreed to settle. For a million dollars. And that a check for the full amount would be arriving shortly.

Yeah, that sounds plausible. Really.

True to the scammer’s word, however, a check did in fact show up in the mail. Not for the full million promised, alas — the check was for just under $500,000. We were soon informed, however, that this was only half of the settlement amount, and that a second check for the rest of the funds was on its way.

But the forgery on the first check was pretty darn impressive:

I’m pretty sure that if I hadn’t known it was a forgery, I wouldn’t have picked it out as one.

-Susan

What Is Obscene?

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It’s been an interesting month for obscenity questions, as a naked mannequin and some “milk nymphos” have again raised the issue of what it means to be obscene.

First, in Washington, a rare federal obscenity case was dismissed for insufficient evidence.  As the Wall Street Journal earlier explained, the case originally stemmed from a couple gross pornos and a movie trailer:

[Porn producer John "Buttman"] Stagliano and two of his companies were indicted in federal district court in Washington in April 2008 on seven counts of distributing obscene, sexually graphic videos that U.S. Justice Department prosecutors allege have no artistic or scientific value and cut against the community standard of what is acceptable. He faces up to 32 years behind bars if convicted.

. . .

The evidence against Stagliano is two DVDs — “Jay Sin’s Milk Nymphos” and “Joey Silvera’s Storm Squirters 2″ — as well as a movie trailer downloaded from the Evil Angel site. An FBI agent bought the movies for $57.48 in December 2007.

In the end, the government failed to produce enough evidence to show that any of the relevant defendants were actually involved in distributing the allegedly obscene material.  In the course of dismissing the case against all defendants, Judge Leon of the U.S. District Court for the District of Columbia also chided the government to be more careful when bringing future obscenity cases:

“I trust the government will learn a lesson from its experience in this case,” Judge Leon continued, adding later, “Hopefully, the courts and Congress will [provide] greater guidance to the judges in whose courtrooms these cases will be tried” since there were “difficult, challenging and novel questions” raised … and there are constitutional interests at stake here.”

Although the case was dismissed, the poor jury was still subjected to a 50-minute clip of “Milk Nymphos.” Here’s hoping I don’t get called for jury duty if the government plans to pursue more of these cases.

I think we can agree that this movie is obscene everywhere.

Second, the people of Beatrice, Nebraska are dealing with their own obscenity issues.  This time, happily, bodily fluids are not at issue; in fact, there isn’t really a body at all.  Rather, the people of Beatrice were appalled when a naked mannequin appeared in a downtown store window.  Officers were called to the scene when the mannequin’s pants fell down to its ankles.  When the officers were unable to find the store’s owner, they papered over the store’s window.  The store owner is pissed and is threatening to sue, but the city attorney is musing that the mannequin might truly have been obscene.  The mannequin is now wearing a tasteful bikini and sporting a rifle.

All I can say is, having lived in Nebraska and being a current resident of DC, I’m somehow not surprised that a mannequin is obscene in Beatrice while “Fetish Fanatic 5” is not in DC.

-Michael

Very Strange Footnotes In A Very Strange Supreme Court Brief

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According to Respondent's brief, Fred Pheps is the leader of "a small nondenominational independent Bible-believing flock in Topeka, Kansas."

The respondent’s brief [PDF] was filed in Snyder v. Phelps a few days ago, and it’s certainly worth a read.  As a reminder, here’s what the case is about (from SCOTUSblog):

The Supreme Court, taking on the emotionally charged issue of picketing protests at the funerals of soldiers killed in wartime, agreed . . . to consider reinstating a $5 million damages verdict against a Kansas preacher and his anti-gay crusade.  . . .

The funeral picketing case (Snyder v. Phelps, et al., 09-751) focuses on a significant question of First Amendment law: the degree of constitutional protection given to remarks that a private person made about another private person, occurring outside the site of a private event.  The family of the dead soldier had won a verdict before a jury, but that was overturned by the Fourth Circuit Court, finding that the signs displayed at the funeral in western Maryland and later comments on an anti-gay website were protected speech.   The petition for review seeks the Court’s protection for families attending a funeral from “unwanted” remarks or displays by protesters.

The “Kansas preacher,” of course, is Fred Phelps, founder of the Kansas church hate group, Westboro Baptist Church.  The brief in Snyder v. Phelps was filed by one of Phelps’ eleven lawyer children (obviously, these folks frequently face litigation).  Although the brief is more coherent than I expected, it definitely has some unusual features.

In particular, the footnotes of the brief go on some truly bizarre tangents.  Here are some of the strangest:

  • Footnote 2: A footnote contending that “funeral etiquette” demands that a private funeral be announced as private.  The footnote cites two of the internet’s most authoritative sources, About.com and Wikipedia.
  • Footnote 6: A footnote explaining that the funeral protests are not acts of revenge against Marines for a prior act of simulated anal sex.
  • Footnote 19: A footnote arguing that Westboro Baptist Church constitutes a religious “subculture.”
  • Footnote 21: A reference to The Encyclopedia of Death and Dying.
  • Footnote 22: A footnote contending that “the Scriptures” support Westboro’s Baptist Church’s position that funerals constitute an impermissible worship of the dead.  (With citations!)

No doubt oral arguments in this case should be . . . interesting.

-Michael