Briefs Law

By Steven M. Badger*
email: sbadger@boselaw.com

            The United States Court of Appeals for the Seventh Circuit heard oral argument on January 14, 2011 in a case of first impression that will decide whether a high school athletic association may require media organizations to buy licenses for internet streaming of high school athletic events.

The appellate court is reviewing a lower court decision last June upholding the Wisconsin Interscholastic Athletic Association’s (the “Wisconsin Athletic Association”) policies regulating internet streaming of high school tournament events. Two Gannett newspapers in Wisconsin challenged the licensing policy on First Amendment grounds.  

            The Wisconsin licensing scheme at issue requires any media organization to pay a fee ranging from $250 to $1500 for the right to stream video of any tournament event over the internet. The Wisconsin Athletic Association also reserves to itself “sole discretion” to grant such rights without specifying any standards for the exercise of its discretion.

Under the Wisconsin licensing policy, any media organization that pays the licensing fee and receives internet streaming rights must provide a master copy its video to a private company holding exclusive broadcast rights.   That private company then may market the video and the media organization that made the video is entitled to a 20% share of the proceeds as a royalty.

The lower court observed in its June ruling that “ultimately, this case is about commerce, not the right to a Free Press.” Gannett’s appeal however argues that the Wisconsin Athletic Association’s revenue-generating motive does not trump the media’s First Amendment rights.

Gannett also focuses its constitutional arguments on the unrestricted discretion the Wisconsin Athletic Association reserves for itself to grant licenses to media organizations of its choosing. Gannett contends that if the athletic association wishes to pick and choose which media organizations may stream video over the internet, the First Amendment requires it do so on an even-handed basis without any threat of exclusion based on viewpoint.

An array of national media associations and media companies has joined in supporting Gannett’s appeal through the filing of an amicus curiae (friend of the court) brief. Those supporting organizations include the Newspaper Association of America, the American Society of News Editors, the National Press Photographers Association and The Online News Association. The supporting media companies include Sun Times Media, LLC and Lee Enterprises, Incorporated, among others.

The Wisconsin Athletic Association is supported by two amicus briefs, one by the National Federation of State High School Associations and the other by 10 state high school associations, including the IHSAA.  

            A decision by the Seventh Circuit is expected this summer or fall. Any of the parties could then seek review by the United States Supreme Court. The decisions of the Seventh Circuit Court of Appeals are binding precedent for lower federal courts in the states of Indiana, Illinois and Wisconsin.

*Steve Badger is a partner at Bose McKinney & Evans and represents media organizations and journalists in media law and First Amendment matters.

Author:  Craig E. Pinkus

A 16 year-old at the time she listened to music through a website claiming to be “100%” lawful asked the US Supreme Court last July to review the decision of the 5th Circuit Court of Appeals against her. Petition for Writ of Certiorari, Whitney Harper, Petitioner v. Maverick Recording Company, et al. , No. 10-94 (U.S. July 16, 2010). One of thousands of young people sued for copyright infringement by downloading music, the judgment and damages awarded against her were apparently so routine for the recording industry that it waived the right to respond to the petition.

In the wake of an amicus brief filed by Harvard Law professor Charles Nesson and others, however, the Court in a simple letter from the clerk requested a response from the record industry by October 15, 2010.  For most lawyers and clients, this is a request you cannot refuse.

An “innocent infringer” defense is provided by the Copyright Act. 17 U.S.C. § 504(c). It is not a complete defense but can be considered by the court as a matter in mitigation that can reduce a damage award for the acts in question. Of particular interest in the 7th Circuit is that the denial of certiorari would arguably affirm the decision in BMG Music v. Gonzalez, 430 F.3d 888, 892 (7th Cir. Ill. 2005) which makes a showing of innocent infringement in these cases a virtual impossibility.

There is naturally no guarantee the Court will grant certiorari, but the request for a response means that it is more likely than is the case with nearly all certiorari petitions. Many observers have argued for years that the flood of lawsuits against downloaders would ultimately fail as a business strategy for the music industry in the internet world. But a cert grant holds the possibility that the legal strategy will need to be revised without waiting for the business strategy to change.

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UNPUBLISHED

For the underlying proceedings in the trial court, appellant Carolynda Applebury-Todosichuk was represented by local Indiana counsel and an out-of-state attorney granted pro hac vice status by the trial court. Although out-of-state counsel failed to seek permission to proceed pro hac vice on appeal, both attorneys signed Applebury-Todosichuk’s Notice of Appeal. Out-of-state counsel then filed an Appellant’s Brief bearing only her signature; local counsel did not sign the brief. Here, we are faced with the threshold question of whether we may even consider the brief.

Conclusion (slip op. at 2): We cannot consider the merits of a brief improperly filed by an attorney not licensed to practice law in Indiana and not granted temporary permission to proceed in this Court. Because Applebury-Todosichuk has failed to timely file an appellate brief pursuant to Indiana Appellate Rule 45(B), we dismiss this appeal.

Key Analysis (slip op. at 5): Although we will exercise our discretion to reach the merits when violations are comparatively minor, if the parties commit flagrant violations of the Rules of Appellate Procedure we will hold issues waived, or dismiss the appeal . . . This is a flagrant violation of the Rules of Appellate Procedure, and we therefore dismiss the appeal

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Per Curiam.

This matter is before the Court on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's "Verified Complaint for Disciplinary Action," and on the post-hearing briefing by the parties. We find that Respondent, Douglas W. Patterson, engaged in attorney misconduct by his conversion of client funds, deceit in concealing his misconduct, and dishonesty with the Disciplinary Commission.

Conclusion (slip op. at 6):  Respondent violated Rule 1.15(a), Rule 8.4(b), and Rule 8.4(c) of the Rules of Professional Conduct. For this professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than three years, beginning July 31, 2008.

Key Analysis (slip op. at 4):  Respondent's justification of his withdrawal of funds from the Trust Account is that he believed the firm owed him additional compensation and that one check was repayment of a loan. Yet he took the funds out secretly, did not use the established procedure for taking funds out of the Trust Account, took steps to conceal the withdrawals, and initially lied to his partner about writing the checks. His actions are not consistent with how a partner would assert a claim for additional compensation from his firm . . . We also find that the hearing officer did not improperly presume the converted funds were client funds and thus shift to Respondent the burden of proving they were not . . . even if some of the funds in the Trust Account were not client funds, it does not change the character of Respondent's withdrawals. They still constitute conversion, only from the firm or a third party other than clients.

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Per Curiam.

This matter is before the Court on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's "Verified Complaint for Disciplinary Action," and on the post-hearing briefing by the parties. We find that Respondent, David J. Colman, engaged in attorney misconduct by participating in preparation of a will for a non-relative that would give Respondent or his son a substantial gift, by representing a client when there was a conflict of interest due to Respondent's personal interests, by failing to hold property of a client separate from Respondent's property and failing to keep a client’s funds in a clearly identified trust account, by entering into an improper business transaction with a client, and by charging an unreasonable fee.

Conclusion (slip op. at 8):  For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than three years, beginning July 1, 2008. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of that period, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4).

Sullivan, Boehm, and Rucker, JJ., concur.

Shepard, Chief Justice, dissenting as to sanction:  ". . . it is hard to fashion an argument for the public that Respondent’s behavior has been such that we might at some future date want, again, to tell clients they can entrust their own dearest matters to him. I thus vote to disbar.

Dickson, Justice, dissenting as to sanction:  "When the respondent was convicted of a federal felony in 1996, this Court unanimously voted not to disbar but only to suspend his privilege to practice law for a substantial time . . . I choose, however, not to make the same mistake a third time . . . "