Federal Law & Legal System – Page 58 – Marquette University Law School Faculty Blog

There Is No Joy in Mudville

Post author:Bruce E. Boyden
Post published:August 22, 2012
Post category:Intellectual Property Law Public Seventh Circuit

At least, not if Mudville is populated by copyright professors; for the mighty Seventh Circuit has struck out. In Peters v. West (Kanye West, that is, or as LEXIS is now abbreviating the case name, “W.”), the Seventh Circuit, in an opinion written by the highly regarded Judge Wood, has badly bungled the already confused test for establishing a copyright infringement claim. I’ma let you finish, Judge Wood, but Judge Newman had one of the best explanations of this test of all time.

The elements of a prima facie copyright infringement claim have long been confusing to students, lawyers, judges — pretty much everyone. (A brief copyright lesson follows; if this is old hat to you, skip 4 paragraphs down.) Essentially, there are only two elements: ownership and infringement. But the second element is broken down further into a set of sub-elements, and courts have long had difficulty explaining the content and the relationship of the various sub-elements clearly. The basic idea, however, long ago expressed in Second Circuit opinions by Judges Learned Hand and Jerome Frank, is that proving infringement is supposed to be a two-part process: proving that the defendant actually copied material from the plaintiff’s work, and proving that the amount copied passes some sort of threshold for materiality.

There are two significant points of confusion with the test.

Seventh Circuit Rejects Effort to Extend Padilla Beyond Deportation Context

Post author:Michael M. O'Hear
Post published:August 20, 2012
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Public Seventh Circuit

In Padilla v. Kentucky (2010), the United States Supreme Court held that an attorney renders constitutionally inadequate representation by failing to advise his or her client of the deportation consequences of a guilty plea. Prior to Padilla, many lower courts had adopted a distinction between “direct” and “collateral” consequences of a guilty plea. While defense counsel was required to advise the client of direct consequences (e.g., a potential prison sentence), counsel was not required to warn the client of collateral consequences (which included, in the view of some lower courts, the risk of deportation). Padilla, however, cast doubt on the existence and meaning of a direct/collateral distinction, which immediately raised questions about whether attorneys might be required to advise clients regarding other sorts of consequences that had previously been regarded as collateral.

Earlier today, in United States v. Reeves (No. 11-2328), the Seventh Circuit turned aside an effort to extend Padilla to the risk that a conviction in one case will be used to enhance the defendant’s sentence in a future case.

Here’s what happened.

California Answers Some of the Graham/Miller Questions, Sort Of

Post author:Michael M. O'Hear
Post published:August 17, 2012
Post category:Criminal Law & Process Public U.S. Supreme Court

As I discussed in a recent post, the United States Supreme Court left many questions unanswered in its two recent decisions on life without parole for juveniles. In the first case, Graham v. Florida (2010), the Court banned LWOP for juveniles convicted of nonhomicide offenses. Then, in Miller v. Alabama (2012), the Court banned mandatory LWOP even for juveniles convicted of homicide. These were important Eighth Amendment decisions, but the lower courts have been left to implement them without much guidance.

Yesterday, the California Supreme Court began to address some of the unanswered questions in People v. Caballero. I think Caballero got things right, as far as it went, but the case left much open for future litigation.