Blawg of the Day: “Anticipate This”, an Entertaining Look at Patents.

Posted by Cliff Tuttle

Here is a blog on patent and trademark law, that you don’t have to be an engineer to enjoy (although an engineer might enjoy it more) called “Anticipate This.”

The illustrations are the best part. This issue features wings for giving you an aerodynamic lift while skiing and a device for skinning a squirrel. However, there are also some serious discussions of the law that will be of interest to lawyers practicing in the field. In case you want to check it out later and forget the name, I’m adding to the Blogroll on the right hand margin.

CLT

Category: Uncategorized

Back Talk Requested: Google Books a Monopoly? Perhaps, but where’s the Harm?

Posted by Cliff Tuttle

The New York Times carried a story this morning, March 4, about a settlement Google is making with publishers and authors regarding re-publication of a vast number of “orphan books” on line. Under the settlement, copyright owners would receive royalties when Google makes electronic copies available to readers and scholars. These books are no longer in print. Publishers, except in rare cases, don’t reprint old books because there is no money to be made and the authors consequently don’t see any revenues either. The Google settlements represent found money for both of them. Electronic copies of the individual titles are not very valuable to Google, but ownership of the aggregate could be quite valuable.

Google’s “Project Gutenberg” is intended to save billions of publications in libraries and other collections from being lost and to make them available at a mouse click to a world-wide readership. This is a laudable goal, perhaps one worthy of public appreciation on the level of the Nobel Peace Prize. Nevertheless, some observers see a threat to the public good in Google acquiring the rights to so many publications. They make dire predictions of a knowledge monopoly. But Google responds that others can do the same thing it has done — copy books, wait to be sued and then settle.

Google’s so-called monopoly is the product of its willingness to spend vast sums of its own money to create an electronic library of libraries. To the extent that each of the paper volumes being copied still exist (and could be published again) it is not depriving the world of anything. Paper is an organic substance, subject to decay and destruction by fire, water and other natural causes. In fifty years, many of these books will be impossible (or nearly impossible) to locate. Then Google or its successor will have a de facto monopoly as to those titles. In time, the list of books that can be found only on Google will grow. Some of them, for reasons not presently appreciated, will become immensely valuable.

So what? Do we resent monasteries because books copied during the dark ages are priceless treasures today? Would that they had preserved more. The task of preserving the writings of our civilization is just as daunting, because of its vast scope. It needs to be done. If an institution like government is not paying the cost, there has to be a profit in it. Frankly, I would trust Google to do the job better than any government.

Monopoly economics is based upon a model of scarcity. There is still only one public sewer in any locality, so we all must pay its rates. But monopolies created in the past are going out of style, not so much through government intervention as through rapid changes in technology. Railroads compete with other forms of transportation and shipment. The owner of telephone wires must compete with wireless technology. The owner of television cables must now compete with the telephone company. New wireless technologies are emerging to compete with them both. Even Google must watch its back, lest some newcomer finds a way to grab a big slice of its market, just as Google the newcomer did to others, not so many years ago.

But Google-nomics and the electronic knowledge industry generally is based on a different model — one of plenty. Words and other conveyors of ideas can be reproduced electronically for a tiny cost. The profit is in volume. Thus, Google doesn’t charge the consumer a penny for information. It charges advertisers for the right to add their commercial message to the margins of the pages that consumers access without charge. This economic model has worked spectacularly well for Google and there is no reason to expect that it will be abandoning it. However, if Google wants to charge, it will have to compete with Amazon.com and a growing host of others who are providing current books in electronic formats. Competition takes many forms; it is alive and well in the 21st Century.

Yes, competition may result in electronic media completing its conquest of paper media. This process is occurring steadily with newspapers and magazines. It may be inevitable. But that doesn’t mean you won’t be able to read a paper book or a paper magazine in a decade or two. The question is whether you will go to the trouble and expense. Even today, a century after the near-universal adoption of automotive transportation, you can still find a horse to ride.

Back Talk Requested.

CLT

Category: Uncategorized

Straight Talk About Outsourcing Legal Jobs to India.

Posted by Cliff Tuttle

Well, as soon as we (and probably others) pointed out that Above the Law was feeding us a steady diet of law firm layoffs, they departed from their usual fare, but only just slightly. Here is a stream of consciousness post on legal outsourcing that left me perplexed. What are you trying to say, ATL? And what is that photograph beside the post? A submarine? Someone please explain to me what this subject has to do with a submarine.

So, to clear the air, here’s a short post that ATL might have run on the subject.

They speak English in India, that’s true. They have an excellent educational system and their graduates work for pennies against our dollars. And they have lawyers, many of whom are probably smart, resourceful and talented. But the idea that lawyers sitting at computer terminals in India can do the work of American lawyers at a significant cost savings is absolutely absurd.

First of all, there’s a vast cultural gulf between our two countries. We, Americans and Indians, don’t think alike and neither do our legal systems. There are too many concepts, nuances, emerging trends and anomalies of American Law that are pretty hard to keep straight, even when you are immersed in our legal culture.

Which brings me to my second point. We have licensing requirements in each of our fifty plus jurisdictions for a reason. When I was a corporate house counsel, I frequently found it necessary to seek the advice of a lawyer in another state because the legal concepts used in a specialty I knew well enough in Pennsylvania were quite strange across the state line. Is it good practice, then, to assign this work to a lawyer on the other side of the earth, one who is not licensed in any state in the United States?

Perhaps you will say that these lawyers in India are not practicing law here, but simply working for a lawyer who does. But that misses the point. Can the American lawyer receive good value from such an arrangement? How reliable is the research performed by someone, however smart and well-trained, who represents a very different legal tradition? How persuasive can a brief written by such a lawyer possibly be to an American judge?

Several years ago, an American mega-bank had hopelessly mismanaged my client’s tax escrow account. I attempted in vain to communicate with a series of customer service people from India on the telephone. It became clear that no amount of explaining would work. I had to send detailed instructions on how to fix the problem by fax, so this information could be relayed to Americans with whom I was not permitted to speak. At no time, did I speak to anyone who had the remotest idea of what I was trying to communicate. In this situation, where complex problems were being described, no amount of training could replace experience which no one in the call center in India had. As long as they remained on their side of the earth and we remained on ours, it could never be otherwise. Multiply this situation by 100 or 1,000 and you have Indian lawyers trying to be American lawyers.

And as for cost, I have heard hourly figures being quoted that are not far from the fees charged by experienced and competent lawyers in America. Some of them are probably being grossly underemployed in electronic discovery projects run by the same firms that are trolling the waters of the Indian Ocean, looking for bargains.

Forget India. Outsource inside your own jurisdiction. Outsource next door.

CLT

Category: Uncategorized

Arbitration Awards and Judgment Liens — the Rescission of Rule 1307 (b).

Posted by Cliff Tuttle

Between 1836 and 2007, any Pennsylvania title searcher could tell you that the entry of an award of arbitrators in the Prothonotary’s docket was a lien on real estate, even if an appeal de novo was filed, taking the matter to a judge. The award of the panel of arbitrators was stated to have the same effect as a verdict on real estate. However, if the title searcher gives you the same answer today, he/she would be wrong. The reasons why are a little tricky.

According to the 2007 Explanatory Comment to Pa. Rule of Civil Procedure 1307, the 1836 statute that created the lien of an award of arbitrators in compulsory arbitration was repealed by the Judiciary Act Repealer Act in 1978 and the new provision of the Judicial Code, 42 Pa.C.S. Sec. 7361 does not contain a provision establishing a lien for an arbitration award. However, the prior practice was continued under Rule 1307 (b), created in 1981.

But in 2007, Rule 1307(b) was rescinded. Thus, the award was no longer the equivalent of a verdict when entered on the docket by the Prothonotary and thus, there is no lien pending an appeal. The lien will only attach following a verdict or judge’s decision.

Moreover, under Rule 1307 (c), if no appeal is taken within 30 days, a praecipe must be filed for judgment to be entered. In other words, when the appeal period has expired, the winning party should be prepared to file a praecipe for judgment.

Category: Uncategorized

Why is “Above the Law” the Top Legal Blog in Readership?

Posted by Cliff Tuttle

Among the blawgs I periodically read is “Above the Law”. After all, it is the most read legal blog according to the AVVO list. But as I checked it today, I began to ask myself why. Why am I reading a blog that seems to have nothing much to say about anything except lawyers being laid off, worrying about being laid off, worrying about starting work 4 or 5 months late or the like? Don’t believe me? Check “Above the Law” out for yourself.

Pretty depressing, huh? So, is the secret to ATL’s success that there are armies of junior associates at Big Law firms checking this blog to see whether their firm is mentioned? Or are there just a lot of people who get off on reading about other people’s troubles? And what’s with issuing press releases when layoffs occur, a la Reed Smith?

Enough already!

CLT

Category: Uncategorized

Landlord & Tenant: City Rental Registration Program Put on Hold Until September.

Posted by Cliff Tuttle

For residential landlords in the City, tomorrow was supposed to be a big deadline.

On April 1, the Residential Housing Rental Permit Program was scheduled to begin and any properties that had not been registered before then would be subject to large fines. The primary purpose of the Permit Program is to assess landlords for disorderly actions committed in their rental properties under an Ordinance passed by City Council in 2007 but not yet implemented. In order to do this, the City felt it was necessary to have a complete up-to-date inventory of all of the residential rental properties in the City. We covered the Permit Program and the Disorderly Property Ordinance in prior posts in Pittsburgh Legal Back Talk.

However, various landlord organizations, including Apartment Association of Metropolitan Pittsburgh, Landlord Services Bureau and American Congress on Real Estate of Pittsburgh filed several suits challenging the Ordinance that created the Program and seeking to enjoin its enforcement.

After some testimony had been taken, the Plaintiffs in these suits obtained a consent order for the purpose of giving the parties time to work out a settlement with the City. Under the consent order, signed by Judge Joseph James on March 19, enforcement is suspended until September or further order of court.

The Pittsburgh Post Gazette gave this development de minimis coverage in the City Neighborhood Section, ensuring that landlords who live outside the City would be kept in the dark. Since it is not considered newsworthy elsewhere, we’ll try to keep an eye on the docket and keep in touch with the trial counsel in the case.

CLT

Category: Uncategorized

Please Email; Please Don’t Fax; But Whatever You Do, Don’t Telex.

Posted by Cliff Tuttle

Recently, I reviewed a contract that used the word “Telex”. I struck it, figuring that this contract language had been drafted fifty or more years ago and recopied hundreds of times without anyone considering the absurdity of requiring a Telex communication. However, I subsequently discovered that the Telex brand still exists via a recent post in Adams Drafting. References to Telexing do appear in contracts, he notes, although not that often. Wikipedia has an article on Telex too.

I can remember observing a Telex machine in the late 70’s, early 80’s in an office where I once worked. In the quiet of the night, you could hear it pounding away down the hall. But the only communications I ever saw come out of it were Associated Press news dispatches. I never sent or received a telex, but every now and then I would come across a Telex address on someone’s letterhead. In a wireless world, Telex apparently still has a niche. But not with me. Don’t try to send me one, I don’t have a wiring address.

At the same office we had an early version of the facsimile machine. It used strong chemicals that you could smell down the hall. The pages were rather poor quality and started turning brown and curling at the corners on the day you received them. I cannot remember anyone ever sending us a facsimile message in those days. We used it (rarely) to communicate between our own offices.

Before modern faxes, my old law firm (not the same place that had the Telex and prehistoric facsimile machine) had employed several law students to run around downtown Pittsburgh on foot, delivering documents by hand to clients and other law firms. Clients from the suburbs or real estate agents would circle the block while a passenger ran upstairs to deliver or pick up agreements. Then, one momentous day, a client who was constantly sending employees on document runs from Cranberry threatened to fire us unless we bought a fax machine. At the time, we didn’t know whether anyone else who did business with us used one. The managing partner actually called several corporate clients and persuaded them to buy their first machine so we would have somebody to fax.

He needn’t have gone to the trouble. Magically, overnight, everyone started faxing. Our machine hardly rested from the moment it was plugged in. After about two weeks it was running all night. As a result of faxing, the pace of work at law firms hit the accelerator. Lead time shrunk to zero. Once a task had to wait until documents arrived in the mail, but now clients demanded that lawyers pay attention to faxes immediately.

Despite regular advances in technology, even today the quality of faxes are less than ideal. Deed descriptions, recopied and refaxed over and over, became grainy, tiny and unreadable. But progress marched onward. Enter email and scanned documents.

At first, it was hard to get most corporate clients to use their email accounts. The fax habit was hard to break. Typically, they would type a letter, print it and send it by fax. This practice was justified on the grounds that it was necessary to include certain grainy hard copies that had been received from someone else by fax. Scanning did not catch on immediately because it required learning a procedure and took more time. But gradually, the benefits of having an electronic file became evident. And here we are.

Today, when I politely ask: “please don’t fax, please email a scanned document”, there is a very good chance that the person on the other end will actually do it.

CLT

Category: Uncategorized

It happened in Pittsburgh.

Posted by Cliff Tuttle

Who says that Pittsburgh is not on the cutting edge of First Amendment litigation? This is the place where the issue of whether pole dancing constituted free speech was raised in our US District Court, as reported in PLBT. Then there was the prosecution of web-site literature about child molestation as pornography in our US District Court, also reported in PLBT. Now, the US District Court for the Western District of Pennsylvania has broken new ground over the vital First Amendment right to express ideas through hand gestures.

I suppose that I ought to read the decision before exercising my right of free speech to criticize it. But reading takes work and writing about decisions takes thought. Better to just flip off the judge. But don’t do it in court. It may not be disorderly conduct, but I guarantee you, in any courtroom in the world, it is contempt.

CLT

Category: Uncategorized

How Much Money Other People Make.

Posted by Cliff Tuttle

One staple feature of magazines for lawyers and now websites, electronic newsletters and blogs for lawyers, is the feature about how much money other lawyers make. This stuff can give you a serious inferiority complex. It is almost guaranteed that reported median salary for in-house counsel, corporate general counsel, partner (or whatever is being reported) will be higher than you make. Until recently, the reported rate for the incoming first year class in some Wall Street firm is probably higher than yours, too. Over the years, I’ve come to the conclusion that the surveys that create these reports are not very scientific. Nevertheless, there are still a lot of other people out there doing very well.

Then come the stories of the fall of the great and proud. There have been too many of those reports lately. Carolyn Elefant periodically points out in My Shingle, always available in the Blogroll on the right margin of PLBT, that the same blogs that gleefully reported starting salaries now gleefully report layoffs. Its just the other side of the same coin: How much money other people used to make.

The fact is, when we buy into this stuff, we are being manipulated. Are we supposed to feel jealousy, anger, what? Compensation levels for partners or first year associates at Sullivan & Cromwell, or even what the sole practitioner next door makes, is irrelevant to our lives. Reading such drivel is a waste of time.

By the way, you could spend the same amount of time gaining useful knowledge in a post in Pittsburgh Legal Back Talk. Or you could be out making money.

CLT

Category: Uncategorized

Q: When is a Billboard not a Billboard? A: When it is 25 SF.

Posted by Cliff Tuttle

The Pennsylvania Supreme Court in Township of Exeter v. Zoning Hearing Board of Exeter Twp., 962 A.2d 653 (2009) upheld a finding by the Zoning Hearing Board and affirmed by the Court of Common Pleas, based on expert testimony, that an ordinance that limited the size of a billboard to 25 feet effectively banned billboards, since 25 square feet was too small to display an advertising message of the kind commonly found on billboards to passing motorists. (Exclusionary Zoning) The expert had testified that 300 square feet was the minimum size at which a billboard could be effective. However, the Court also noted that the Court of Common Pleas made no findings whether the ordinance was justified by heath safety or aesthetic concerns and remanded the case for findings in that area.

Such a remand would seem to presage another appeal. Stay tuned for Exeter II.

CLT

Category: Uncategorized

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Welcome

CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

Pittsburgh Legal Back Talk

Legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus.

1410 Posts and Counting

Categories

Blawg of the Day: “Anticipate This”, an Entertaining Look at Patents.

Back Talk Requested: Google Books a Monopoly? Perhaps, but where’s the Harm?

Straight Talk About Outsourcing Legal Jobs to India.

Arbitration Awards and Judgment Liens — the Rescission of Rule 1307 (b).

Why is “Above the Law” the Top Legal Blog in Readership?

Landlord & Tenant: City Rental Registration Program Put on Hold Until September.

Please Email; Please Don’t Fax; But Whatever You Do, Don’t Telex.

It happened in Pittsburgh.

How Much Money Other People Make.

Q: When is a Billboard not a Billboard? A: When it is 25 SF.

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