Suppose you had a high priced lawyer who sent a notice to someone on your behalf certifying, upon pain and penalty of perjury, that the information in her notice was accurate but that it turned out it was nothing of the kind? And that the falsity of the statement would have been immediately evident to a large number of non lawyer lay people, much less a lawyer acting on behalf of the US government? It seems there are only two choices here: deliberate perjury (a serious crime); or the engagement on your behalf of seriously incompetent people (business as usual in this Administration). I'll let you decide, after hearing the details.
The law firm involved is Reed Smith of Manhattan, one of the largest law firms in the world. It has 1600 lawyers in a global network. The firm's profits per partner in 2006 was over $1 million. One of its primary practice specialities is intellectual property law. According to their website:
Our IP litigation team is composed exclusively of full-time IP trial attorneys, who are versed in:
- Patent, trademark and copyright (including software) infringement
- Trade dress, trade secrets and unfair competition
- International dispute resolution
- Insurance coverage claims involving IP disputes
We have won large-ticket disputes in court and before tribunals such as the U.S. Patent and Trademark Office, the U.S. International Trade Commission, the World Intellectual Property Organization and the International Chamber of Commerce.
[snip]
Our attorneys prosecute all types of IP rights. We have filed tens of thousands of patent and trademark applications for clients around the globe. We also help clients develop internal processes to protect IP rights, and draft employment, nondisclosure and confidentiality agreements.
A common thread throughout our IP practice is our dedication to partnering with clients to provide the highest quality service. Through our Rotating Attorney Program, our lawyers work in client offices to better understand client operations and goals. While some law firms talk about understanding their clients' industries, we devote personnel and resources at the ground level.(Reed Smith website)
They are not neophytes. They have the experience and know how regarding intellectual property law, from the most complicated to the simplest. They don't just "talk about understanding their clients' industries, [they] devote personnel and resources at the ground level."
So it makes you wonder why the Reed Smith attorney representing the US Air Force didn't know that "[i]nformation presented on the Air Force Recruiting website is considered public information and may be distributed or copied." At least that's what the Air Force Privacy Policy states, as shown on their website. Not that the lawyer should need that policy to know that US Government Publications for the general public are not licensed or copyrighted. That includes scientific papers written by government agency scientists, even if all other papers in the same journal are copyrighted by the journal publishers. Everyone knows that. Everyone, apparently, except the Intellectual Property "experts" at Reed Smith, who sent YouTube an order to take down a 30-second recruiting video being used to recruit tech savvy youngsters to their new Cyber Command effort. Why? Because, according to a Demand Letter from the Reed Smith attorney, YouTube was "offering unlicensed copies of, or [was] engaged in unauthorized activities related to copyrighted video footage owned by the U.S. Air Force." (full demand letter in .pdf format here). False on its face. These materials are not copyrightable. The attorney is supposed to know that, even if the Privacy Policy didn't state it explicitly. Which it did. So this appears to be, a raw act of intimidation against YouTube, who employs no lawyers and did what it usually does when presented with such a Demand letter, took down the spot.
If this isn't stupid enough, I've seen this same spot about twenty times in the past two weeks on a basic cable station (MSNBC). You can't see it now on YouTube because they acceded to the Demand letter, but you can see it on the Wired News site that broke the story here. It's at the bottom. Even worse, the Air Force marketing chief had sent Wired the spot and asked them to put it on their Threat Level website last month (which they did). The idea is for people to see it. Unless they see it on YouTube, I guess.
So I'll ask the question again. Were the assertions of the Reed Smith attorney that this was copyrighted material, assertions made under pain and penalty of perjury, a crime? Or monumental and counter-intuitive incompetence, akin to a trained surgeon who claims he didn't know about germs and sterile procedure?
You decide for yourself. One thing for sure. No one is going to be investigated for a crime on this one, even though on its face it looks like one may have been committed.
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Uh-oh, you're onto something. What makes lawyers so powerful in this society is that they are, collectively, tons smarter than judges, individually. A lawyer bamboozles a judge into making the decision he wants, and that decision, de jure, becomes law.
It's like religion, they just make stuff up.
The law is based on principles, which the rest of us know as arguments. The fundamental theorem of legal practice is that for every legal principle there is an equal and opposite legal principle.
For example:
1. The rules are the same for everybody.
2. No, they aren't.
See? The job of a lawyer is to give the judge such a snowjob that the idiot will think he's acting consistent with the body of law, while that body of law is in fact, when scrutinized closely, just a mass of contradictions.
So, maybe Reed Smith could sue themselves for being stupid?
It could be a landmark decision, and go into case books and everything! (And I want 20% for the idea. Gross, not net.)
simple solution:
a letter describing the situation sent by certified mail from the guy whose post was taken down (he has standing). Addressees should be CC'd so they all know everyone knows:
-The NY state bar
-The NY AG or whichever agency would be responsible for the perjury part of the deal.
-The agent of service for Reed Smith, or whoever it is you contact at a lawfirm if you are going to sue them.
About Three Fitty: That is possibly the most pessimistic and cynical description of the legal system I have ever heard. On top of that, its simply not true. Lawyers don't just make stuff up (if they do, you can bet the other side will call them on it), cases with poor rulings are routinely appealed, and judges (most were previously lawyers) usually see through bullshit faster than most.
Thats not to say there aren't problems with the legal systems, but rather to say that the problem has more to do with the fact that its over burdened by the litigation happy citizenry and the overzelous drug laws that punish rather than treat addiction.
You might be right on this one Revere. As I understand it there was a problem with the material being used in an inappropriate manner on OTHER sites to prevent recruitment...Looking for that one as I saw it about a week ago and didnt think of it at the time. On the other hand, even if they said it wasnt and then said it was, then it is....copyrighted. I know one thing, I wouldnt screw with these guys unless I had a hard core reason to.
Someone also would have had to have instigated the demand.... Wonder where that came from?
Isn't YouTube now owned by Google? I think they employ more than a few lawyers, and good ones, too.
Weird.
M Randolph Kruger - when does something enter the public domain? When it has been distributed multiple times in multiple places? After it is distributed publicly with a specific disclaimer from the originator? How long does the originator have to change his mind?
Mark P... Dont know. But something hit the trip wire with these guys. They can be very specious about it as well. I guess its not in the public domain unless someone is willing to fight it into it? I mean really Revere is right about the fact that we ALL have seen the cyber-defense recruiting thing. Funny, the day after it was introduced a couple of geeks in China said they penetrated the system.
Well I doubt it. If they did it was low level and the data so encrypted it would take an army of computers just to get the key for that days data. We are transmitting in real time now. The key goes out via the computers and they make their own code keys for use that day.
But back to this. I havent a clue what set these guys off but off they are.
are the laws copyrighted by the department of justice ?
anon: No. US gov. publications are not copyrightable.
If one presumes counsel in question is competent (perhaps a stretch) then the question becomes one of their motivation to prevent youtube from airing the video. In response to Revere I don't see any obvious crime as you have described the events. What is at issue is a demand letter wherein the corporation (that group of attorneys) is demanding that youtube stop using the video. Even if they are knowingly lying (as they apparently are) they are not making those claims to a court or law enforcement official in an ivestigative capacity. They are lying to a private entity so purgery will not accrue. Hypothetically youtube might have some civil recourse against Reed Smith (alleging that the knowing false demand letter was somehow tortious conduct). We pay lawyers to make creative argument so maybe yutube could get some money out of it. In any event a criminal prosecution is the role of government not youtube and purgery is rarely prosecuted (otherwise half the parties in divorce cases would wind up in jail :-) ).
Carl: If you read the Demand letter, it is made under penalty of perjury. I believe this has legal standing. The link is in the post.
Revere - apologies - I did not read the PDF file prior to posting. In any event I believe the U.S. Attorney (or Asst. USA) would have to bring any perjury action against Pikser.
Looks to me they are going after them under items 2 and 6.
Item three in the demand letter isnt a perjury Revere by any stretch of the imagination. Someone screwed up, the request should have gone thru another office and now they are asserting their rights under the law. No big deal. Someone didnt follow USAF procedures about this kind of stuff and I am sure that they dont want it downloaded to some anti-war fanatics website so they can vilify the military in general or denigrate them with the usual below the screen commentaries.
Reed-Smith is in the right here. But its a right of post action (postea contendo) and that is still actionable. Simple answer here is to just pull the ad from Youtube and etc. If they want to assert the right, let them. It certainly isnt worth all the money it would cost to get the right to put up a video. If they want to put it up on YouTube there would have to be some limits of use.
It certainly isnt perjury by any definition.
A much more obvious explanation: The law firm or its subcontractors is using some kind of automatic tool to look for its clients' copyrighted information out there, which then generates a takedown notice and is (probably) routed to some human to review it. The human gets lazy and doesn't think much about the notice, since he gets stuck reviewing several dozen per day.
The alternative is that an IP lawyer doesn't know something about law that nearly everyone else does who deals with academic publications (where this comes up routinely in getting copyright forms and such signed).