On February 16, 2016, Magistrate Judge Sheri Pym in the01-Caliguri-Er-15EX-web United States District Court for the Central District of California issued an order compelling Apple, Inc. to provide technical assistance to the F.B.I. so it can access an iPhone 5C that belonged to a shooter in the recent San Bernardino, California attack.

The order, which issued without obtaining Apple’s initial input, requires Apple to write new software and take other measures to disable passcode protection on the attacker’s iPhone. The court issued the order under 28 U.S.C. § 1651, the “All Writs Act,” which authorizes the United States federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The order also allowed Apple to make a request to the court for relief from compliance with the order if such compliance would be unreasonably burdensome. Apple made this request via a motion to vacate the order on February 25, 2016. In its motion to vacate the order, Apple raises three general arguments.

First, Apple argues that the relief the government seeks is not justified under an extension of the All Writs Act because law enforcement assistance by technology providers is already addressed by existing laws that specifically omit providers like Apple from their scope. Apple argues the Communications Assistance for Law Enforcement Act (“CALEA”), 47 U.S.C. § 1001 et seq., specifies when private companies must assist law enforcement in the decryption of electronic communications obtained during surveillance, and the nature of the assistance such companies must provide. Specifically, under CALEA a company has no obligation to assist law enforcement where the company does not retain a copy of the decryption key, which Apple says it does not have in this case. Thus, Apple asserts that Congress opted not to provide courts with the authority to compel companies like Apple to assist law enforcement in cases such as this one where Apple designed and manufactured the device but did not retain a decryption key. Therefore, Apple says the government’s attempt to use the All Writs Act to expand the obligations imposed by CALEA is improper and violates the separation of powers doctrine.


Continue Reading Apple Argues It Should Not Be Compelled to Write Software for the F.B.I.

In 2008, former Mayor of Washington, D.C., and then council member Marion Barry became ill with a kidney disease. To survive the illness, Mr. Barry required a kidney transplant, and one of his friends, Ms. Kim Dickens, came to his aid and donated one of her kidneys. Although the transplant helped Mr. Barry survive for several more years, he passed away in November 2014. Ironically, Mr. Barry’s widow is now suing Ms. Dickens.

In a lawsuit filed by Cora Masters Barry against Kim Dickens, Mrs. Barry alleges that Ms. Dickens has unlawfully used her late husband’s celebrity identity in order to promote the “Barry Dickens Kidney Foundation,” a charity formed by Ms. Dickens. According to the website of the Barry Dickens Kidney Foundation, Marion Barry played a role in the formation of that group, and the website even features photographs of Mr. Barry along with a detailed story of how Ms. Dickens came to donate one of her kidneys to Mr. Barry.

Mrs. Barry’s claims against the Foundation are not without legal precedent. In 1993, Wheel of Fortune hostess Vanna White sued Samsung Electronics of America in connection with a television ad which depicted a robotic version of Ms. White to promote sales of Samsung’s video cassette recorder. Ruling in favor of Ms. White, the Court of Appeal determined that television and other media create “marketable celebrity identity value,” and a celebrity has an exclusive right to exploit this value by prohibiting unauthorized commercial exploitation of their identity.


Continue Reading Move Over Vanna White, Here Comes Marion Barry’s Kidney

By: David R. Gabor

I. The Art World Is No Longer A Quiet Place

Decades ago, a former counsel for the Metropolitan Museum of Art in New York City commented that transactions in the art world are generally very "hush-hush" and have always been that way. See Gabor, Deaccessioning Fine Art Works, 36 UCLA L. Rev. 1005 (1989).

Much has changed in the intervening years. Like the now-ubiquitous tallies of weekend movie box office grosses, the ups and downs in the art market, driven by spiking art world prices, increasing art speculation, and an influx of the day-trader mentality into the art world, have become fodder for many major publications. Most recently, the value of a significant portion of the Detroit Institute of Art has made national news headlines, with various creditors and experts jousting over the proper valuation of the artworks, for purposes of potential sale within the context of Detroit’s municipal bankruptcy.

Despite the increasing public fascination with blockbuster art auctions, the rarefied world of the discrete art dealer, quietly buying, selling, or trading works, for any number of reasons, including to shore-up shaky owner finances to help them save face, still very much exists.


Continue Reading Red Rothko: Confidentiality Agreements in the World of Big Art

 By: Scott Hervey

Once again, California leads the nation in passing online privacy consumer protection legislation. On September 30, 2013 Governor Jerry Brown signed into law A.B 370 which adds new provisions to California’s existing Online Privacy Protection Act (Business and Professions Code Section 22575).  These new provisions require the operators of websites, online services and  mobile applications to disclose how they respond to an electronic request not to track an individual consumer’s online activities over time and across different Web sites or online services. According to the bill’s author, Al Muratsuchi, since California passed CalOPPA in 2004, evolving technology and new business practices have raised new privacy concerns, including concerns over online behavioral tracking.


Continue Reading California Passes New Privacy Law That May Require Revisions to Most Online Privacy Policies.

By Dale C. Campbell

On July 31, 2012, the Ninth Circuit issued its ruling protecting the right of privacy held by collegiate athletes against the use of their likeness in connection with video games. (Keller v. Electronic Arts, Inc. (2013) 9th Circuit Court of Appeals 10-15387. This decision joins the Third Circuit’s decision in Ryan Hart v. Electronic Arts, Inc., U.S. App. LEXIS 10171 (3d Cir. 2013), finding that the collegiate athletes’ right to publicity outweighs Electronic Arts’ First Amendment rights. 

Sam Keller was a starting quarterback for Arizona State in 2005, before joining Nebraska in 2007. Electronic Arts ("EA") is the producer of a series of video games known as NCAA Football, in which EA seeks to replicate a school’s entire team as closely as possible. NCAA Football is an interactive game that allows the video gamer a wide range of playing options including modification of a player’s size and abilities as well as for which team he plays. Keller sued EA and the NCAA in a putative class action. EA filed a SLAPP motion ("Strategic Lawsuit Against Public Participation"), claiming that this conduct was protected by the First Amendment. The District Court denied the SLAPP motion, and EA appealed. 

The Ninth Circuit recognized that video games, like books, plays, and movies, are entitled to the full protections of the First Amendment.  (Brown v. Entm’t Merchs. Ass’n, 131 S.Ct. 2729, 2733 (2011). However, the First Amendment rights are not absolute, and states may recognize the right of publicity to a degree consistent with the First Amendment. (Zacchini v. Scripps-Howard Broad Co., 433 U.S. 562, 574-75 (1977).) 


Continue Reading THE NINTH CIRCUIT THROWS A PENALTY FLAG AGAINST ELECTRONIC ARTS