Faculty in the Media January-June 2010

June 28, 2010
Contra Costa Times
California can expect a barrage of legal challenges to its many strict gun control regulations as a result of the U.S. Supreme Court ruling that state and local governments are bound to adhere to the constitutional right to bear arms. California is one of the few states that does not have the equivalent of the Second Amendment in its state constitution, so lawyers challenging those laws will have new arguments to make as a result of the ruling. "I still think that in a majority of these cases, (the challenges) are going to lose," said Pratheepan Gulasekaram, a Santa Clara University law professor. "But local governments are going to spend a significant amount of state and local money defending these lawsuits."

June 27, 2010
Calgary Sun (Alberta, Canada)
Discussing last week's court ruling against Viacom in its $1 billion copyright battle over YouTube, Eric Goldman, director of the High Tech Law Institute at Santa Clara University School of Law, said the impact of the case on Hollywood could be felt if user-generated websites refuse to implement filtering technologies or otherwise go beyond what the DMCA mandates. "A lot of content owners want service providers to do more than the law requires," Goldman said. "This opinion rejects those requests." To that end, the ruling also could renew Hollywood calls to reform copyright law at its source.

June 25, 2010
USA Today
The confirmation hearings for Solicitor General Elena Kagan to the Supreme Court sessions come against the backdrop of an increasingly polarized Senate and the midterm elections in November. "The flashpoints are going to be driven less by her record than by what there's political mileage to talk about," says Santa Clara Law School professor Bradley Joondeph, a former law clerk to now-retired justice Sandra Day O'Connor.

June 24, 2010
New York Times
In a major victory for Google in its battle with media companies, a federal judge in New York on Wednesday threw out Viacom's $1 billion copyright infringement lawsuit against Google's YouTube, the No. 1 Internet video-sharing site. "The ruling should give online service providers a lot of comfort that copyright owners aren't going to be able to force them to change their behavior or put them on the hook for problems that their users create," said Eric Goldman, director of the High Tech Law Institute at the Santa Clara University School of Law.

June 18, 2010
San Jose Mercury News
Two decades after the first Conference on Computers, Freedom and Privacy, a group of privacy advocates, computer scientists, lawyers and others wrapped up a conference in San Jose on Friday with what they hope will be a milestone for the social Web: a "bill of rights" for social-network users. Participants contributed comments and votes in person at the conference and on Twitter and Facebook while organizers edited the proposed principles in real time on Google Docs. "This is the first time any of these bill of rights have been voted upon," said Dorothy Glancy, a professor at the Santa Clara University law school who was another chair of the CFP conference. "I think we'll still be talking about this 10 years from now, because I think social networks are going to be with us for the long haul".

June 8, 2010
Mediapost.com
The advocacy group National Organization for Reform of Marijuana Laws has settled a lawsuit brought by copyright enforcement outfit Righthaven by agreeing to pay $2,185. The settlement resolves a lawsuit filed in March against the nonprofit by Righthaven for allegedly infringing copyright to three Las Vegas Review-Journal articles.The settlement came about as a result of a strategic maneuver by NORML's attorney Marc Randazza, who filed a court document offering to resolve the case under Rule 68 of the Federal Rules of Civil Procedure. That rule provides for the shifting of litigation costs should a party obtain a judgment less than the settlement offer. While the tactic resulted in an agreement in this case, it's unclear whether the rule's cost-shifting provisions apply in copyright infringement matters, according to Santa Clara University law professor Eric Goldman.

June 2, 2010
Los Angeles Times
State lawmakers moved Tuesday to vastly expand the powers of  Los Angeles City Attorney Carmen Trutanich by supporting a measure that would give him his own grand jury. Law professor Gerald F. Uelmen said he was not aware of any other city attorney in the nation with the power to empanel a grand jury for misdemeanor cases. Trutanich's proposal "seems like a rather elaborate solution to a simple problem," said Uelmen, who teaches at the Santa Clara University School of Law.

May 30, 2010
San Francisco Chronicle
Beyond any legal or policy changes, the emergence of social networking necessitates a shift in mentality among the contributors and consumers of personal information online, said Eric Goldman, director of the High Tech Law Institute at the Santa Clara University School of Law. "It can't be a disqualification because then everyone gets disqualified," Goldman said. "We're not going to be able to put the genie back in the bottle, so we're going to have to become smarter consumers of information."

May 22, 2010
Contra Costa Times
Three news organizations will argue in court that a gag order should be lifted and court records unsealed in the case against Melissa Huckaby, who pleaded guilty to charges of kidnapping and killing 8-year-old Sandra Cantu, of Tracy. San Joaquin County Superior Court Judge Linda Lofthus declined to lift the gag order when Huckaby accepted the plea deal. Huckaby is scheduled be sentenced June 14 to life in prison without parole. One legal expert said he hadn't heard of a gag order continuing after a guilty finding. "The gag order is aimed at the public, making sure that you don't develop prejudice" before a trial, said Ed Steinman, a Santa Clara University School of Law professor. Prosecutor Thomas Testa  believes it's best to wait until after sentencing to speak, because with people talking about the case, Huckaby might change her plea and want her day in court, tainting the potential jury pool. But Steinman said he was unsure if such a scenario had ever occurred. "If it's happened, I don't know about it," Steinman said. "More importantly, that is not a justification for gag orders continuing."

May 22, 2010
San Francisco Chronicle
School districts and parents announced a lawsuit against the state arguing that elected officials have failed in their constitutional obligation to adequately fund public schools. If successful, the suit could completely change how much money California must pump into public education. Court challenges tend to increase during tough budget times, said Santa Clara University law school Professor Gerald Uelmen. "I don't think this is a new phenomenon - budget cuts frequently result in lawsuits," he said.

May 18, 2010
KCBS radio
Linda Starr was interviewed regarding the recent US Supreme court decision that held it unconstitutional to sentence juveniles to life without the possibility of parole for crimes other than homicide. Listen to the interview here.

May 16, 2010
San Francisco Chronicle
In 2008, a commission appointed by the Legislature to examine the state's justice system recommended that each district attorney draw up disclosure policies and lists of police officers with records of convictions or lying, said Santa Clara University law school Professor Gerald Uelmen, the panel's executive director. But prosecutors bristled. "We ran into this again and again and again," Uelmen said. "This resistance to having an outside agency looking over our shoulder. They said, 'You can trust us, we know what the law is. Don't tell us how to run our shop.' "

May 4, 2010
WJRT-TV - Online
Walmart has agreed to pay $27.6 million to settle allegations that it improperly handled and dumped hazardous waste at stores across California in a case that led to changes in the retailer's practices nationwide. Kyle Graham is a former prosecutor and law professor at Santa Clara University familiar with the civil complaint. "Well, they're trying to send a message, in this case to Walmart, that if you operate in the state of California you have to adhere to California rules," he said.

May 2010
American Lawyer
For a business that collects massive amounts of personal information about its users, Google gives up almost nothing about itself. 'No plaintiff has ever been able to get its hands on the specifics of how Google chooses what ads to display and in what order,' said Eric Goldman, an associate professor at Santa Clara University School of Law who follows the search giant closely in the courts.

April 27, 2010
Law.com
Companies should insist that bloggers disclose any gifts they are given and should monitor posts to ensure that disclosure follows, according to the US Federal Trade Commission. Technology and marketing law blogger Eric Goldman, who is associate professor of law at Santa Clara University School of Law in the US, that they unfairly punish bloggers when traditional media outlets are often in receipt of gifts or products to review. 'The FTC does not clarify what constitutes a disclosable conflict of interest. For example, if the post qualifies as an endorsement, 'disclosure of the connection between the speaker and the advertiser will likely be warranted regardless of the monetary value of the free product provided by the advertiser',' he wrote earlier this month. 'The guidelines define an 'endorsement' as 'any advertising messagethat consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser'.' 'This is a circular definition! Conflicts of interest become disclosable only when the content qualifies as an 'advertising message,' but editorial content can become an advertising message based on the author's conflicts of interest. Stuff like this makes my brain hurt,' he wrote.

April 27, 2010
San Jose Mercury News
Discussing an upcoming Supreme Court case that will decide whether the government has authority to restrict violent video games, Brad Joondeph said the case will not necessarily fall into the usual liberal vs. conservative divide inside the court. "This is different," he said. "This is one of those cases that's a hot-button issue that is not predictable."

April 26, 2010
San Francisco Chronicle
The U.S. Supreme Court will review a decision by the Ninth U.S. Circuit Court of Appeals in San Francisco to throw out a ban on the sale of violent video games to minors on the grounds that government has no authority to restrict even the most violent games. The Supreme Court's decision to hear the case comes a week after the high court struck down a federal law banning videos showing animal cruelty. Margaret Russell, a professor of constitutional law at Santa Clara University School of Law, cautioned against making comparisons between the two cases. Although both have to do with violence, she said, the animal-cruelty video case "really focused on how overly broad the law was, rather than the core content." Still, the high court made clear in both cases that it was intent on examining First Amendment issues, Russell said. "The animal cruelty video case reflects the Supreme Court's reinforcement of the principle that carving out exceptions to the First Amendment is a risky and flawed approach to solving the very serious problem of violence in our society," Russell said. "I regard the court's decision to examine the California violent video game law as another indication of its concern with the constitutional constraints on limiting expression, even if that expression is disturbing and controversial."

April 26, 2010
MediaPost.com
In a mixed ruling in a click fraud lawsuit, U.S. District Court Judge Jeremy Fogel in San Jose, Calif., has held that marketers can sue Facebook for allegedly charging them for "invalid" clicks, but not for "fraudulent" ones. Santa Clara University law professor Eric Goldman says the decision appeared good for Facebook overall. "The judge has made it clear that Facebook's advertising terms and conditions preempt a lot of the things that plaintiffs might care about," he said. He added that Facebook likely attempted to protect itself with a disclaimer because it had seen how vulnerable Google and Yahoo were to click fraud claims. Several years ago, both companies settled class-action click fraud lawsuits. "Over time, we've learned a bunch of things about how to manage click fraud exposure," Goldman said. "As a result, Facebook's in a much better position than the search engines were five years ago."

April 7, 2010
MediaPost.com
Faced with growing backlash by small businesses and three potential class-action lawsuits accusing the site of "extortion," Yelp said it would make several changes to the way it displays reviews. But the decision to end the "favorite review" feature and make filtered reviews available might have come too late to solve Yelp's legal problems now that litigation has commenced. "Those lawsuits are going to continue apace," predicts Santa Clara University law professor Eric Goldman, adding that businesses can still argue that they were damaged by Yelp's alleged prior practices. But, he says, the move might limit liability in the future. "In theory it might deflect some future advertisers from queuing up. We'll just have to see about that."

April 6, 2010
San Jose Mercury News
The U.S. Court of Appeals for D.C. today rejected the argument of the FCC that it had the power to regulate Internet service providers. The decision deals a direct blow to proponents of so-called net neutrality rules, which require Internet service providers like Comcast to treat all Internet traffic equally. "This particular order focuses on some pretty narrow, legal, wonky jurisdiction issues, about whether the FCC has jurisdiction to regulate Internet service providers," said Catherine Sandoval, a law professor at Santa Clara University who is a former FCC official. But if the legal technicalities are wonky, the effect of the ruling could be significant, and Sandoval said she expects the FCC to appeal the ruling to the U.S. Supreme Court. "I'm sure they are meeting today to decide whether they should appeal to the Supreme Court, and it's very likely that they would," she said.

March 30, 2010
Miller-McCune-Online
The affirmative action of tomorrow might focus more on class and other proxies for hardship and less on race. “A lot of good programs that are trying to diversify the student body look at both race and class,” said law professor Angelo Ancheta of Santa Clara University. “They understand the intersection of the two. But a lot of schools don't really try to diversify along class lines—especially the elite private universities. Some are eliminating tuition for some low-income families, but there's not the level of economic-class diversity that I'd like to see.”

March 23, 2010
San Jose Mercury News
Discussing Google's decision to no longer comply with censorship rules in China and the Chinese government's condemnation of that decision, Anna Han said, "There's a rising sense that this is not the right direction for China to go, which is increasing its isolation." Han, a specialist in Chinese law, has been monitoring the online reaction in China since Google's announcement yesterday. "When they mention this, it's not only Google. It's Facebook; it's YouTube. It's 'What else is going to be blocked?' "

March 19, 2010
PCMagazine.com
The European Court of Justice in Luxembourg will rule whether or not Google infringes the trademark rights of such companies as Louis Vuitton through its Adwords service, in which advertisers pay to use keywords that are the companies' proprietary brand names. "This case has the potential to shape global standards for the legitimacy of keyword advertising," said Eric Goldman, an associate professor of law at Santa Clara University School of Law, who called that a "multibillion-dollar question." "We're going to get new and highly influential legal guidance on the legitimacy of that practice," he said. "That has the potential to move billions of dollars in our industry."  A "nice, clean" ruling from the European Court of Justice could potentially influence U.S. law, said Goldman, who added: "It's very possible we'll get a very muddy, murky ruling. We take it for granted that Google can do whatever it's doing and that's not a question that anyone here (in the U.S.) has ever answered definitively."

March 18, 2010
San Jose Mercury News
Viacom sued YouTube in 2007, saying it had violated federal law by allowing others to upload more than 60,000 copyrighted videos without authorization. In its filings in U.S. District Court in New York, YouTube said that Viacom, which owns Paramount Pictures, Comedy Central and other entertainment properties, secretly tried to use YouTube's popularity to promote its content, posting "roughed up" videos to make them look stolen or leaked, and even sending employees to Kinko's to upload clips that couldn't be traced back to Viacom. The collateral damage from the no-holds-barred legal battle could ding the reputations of both companies, observers said Thursday after the court material was released. "It is ridiculous that these parties have not settled," said Eric Goldman, director of the High Tech Law Institute at Santa Clara University. "It's like a prize fight — they are both scoring points; they are both beating each other up. But instead of making money from the fight, they are paying to be in it. That's really dumb."

March 9, 2010
Business Wire, Sacramento Bee
A medical marijuana user is on trial in Sacramento Superior Court for concealing five pounds of medical in his luggage during a flight. "I don't think a 5-pound recommendation could stand up in court for any medical condition," said Gerald Uelmen, a Santa Clara law professor and an attorney in the recent California Supreme Court medical marijuana case. Uelmen represented Patrick Kelly, a Long Beach man who said he was using marijuana for back problems and depression. Kelly was charged with possession for sale for having 12 ounces of marijuana.

March 2, 2010
Business Week
The International Trade Commission is becoming a new forum for patent disputes that are delayed or lost in federal court. "The ITC is becoming a mainstream second track for patent litigation that allows companies to take a second bite of the apple with their patent cases," says Colleen Chien, an assistant professor of law at Santa Clara University. About 90% of patent cases brought before district courts are settled, while 55% of cases brought before the ITC are resolved by a settlement or disposed on other grounds, Chien says.

March 1, 2010
San Francisco Recorder
As Chief Justice Ronald George approaches his 14th anniversary as California's top judge, his vision for the nation's largest judicial branch is vulnerable. Gerald Uelmen, a professor at Santa Clara University School of Law, called George "masterful" at building relationships with politicians. But he attributed a recent spate of potentially hostile legislation at least in part to term limits. "It's almost like a full-time job to keep up with all the changes in the Legislature, with who's pulling the strings," Uelmen said.

March 1, 2010
The Wall Street Journal
Some legal experts think Microsoft now is trying to stir up official scrutiny of its nemesis, Google. "Microsoft is doing a lot to try and harass Google on the antitrust front," says Eric Goldman, director of the High Tech Law institute at the Santa Clara University School of Law in California. So far, Google has managed to deflect most efforts to slow its expansion. In November, it charged into the field of cellphone advertising by agreeing to buy a firm called AdMob. Anticipating scrutiny, it coupled the announcement with a defense of the competitiveness of the deal. The FTC is reviewing it. Santa Clara University's Mr. Goldman expects Google will have to keep navigating a legal and regulatory minefield. "If everyone starts piling on, Google might have to change its basic business." Link to full article.

February 28, 2010
The Journal News (Westchester, NY)
Responding to a recent murder in which a mother strangled her adult daughter, Michelle Oberman said, "The vast majority of cases that I've seen in the universe of mothers who kill their children involve mothers killing much younger children. I don't think I know of another case in which a mother kills a child who is an adult".

February 20, 2010
The Salt Lake Tribune
The Utah State Legislature is trying to pass a law that takes aim at cybersquatting, in which Internet domain names are nearly identical to another company's, to try to profit from that company's name or trademark. Eric Goldman, director of the High Tech Law Institute at Santa Clara Law he doesn't believe the law will have much effect. "Given all the troubles Utah has had putting together a smart legislative solution, whatever it is, why are they bothering now?" Goldman said. Goldman said the most important part of the bill is its repeal of a 2004 spyware law, which is being replaced with language modeled on a California law that regulates intentionally deceptive software. Still, he said, the Utah bill mostly would outlaw practices that are no longer in use. Goldman is also unsure about the impact of the anti-cybersquatting bill because there are other avenues to pursue cybersquatters that could be less costly or eas-ier. He disputed Urquhart's assertion that the Utah law would be the first state law in the nation to tackle cybersquatting.

February 4, 2010
Vancouver Sun
Michelle Oberman, who has coauthored two books about mothers who kill their own children, says the murder of children by their mothers is not rare, but it shocks the public. "When a mother kills her child, it conflicts with our deepest sensibilities about what is sacred in life," she says. "The mother-child relationship is widely considered to be last-breath, only bastion of true unconditional love." She says the crime is much more complicated than other homicides. "Conventional homicides evoke emotions that we're comfortable penalizing, like greed or vengeance or gang warfare or power, and we, as a society, have no problem saying that is something that we need to penalize," says Oberman, a law professor at the Santa Clara University law faculty in California. "The cases involving mothers killing their children tend to involve much more complicated emotional underpinnings. You will see despair, isolation and mental illness."

January 27, 2010
San Jose Mercury News
Experts in criminal law and ethics said the blanket boycott of Superior Court Judge Andrea Bryan that Santa Clara County District Attorney Dolores Carr initiated last week is an abusive tactic that can damage the court system. "Inappropriate" and "a threat to judicial independence" were the terms used by Gerald Uelmen, a Santa Clara University law professor and former dean. "I think the boycott is intended to send a message to every judge in Santa Clara County," Uelmen said. "The message is, 'Especially when it comes to prosecutorial misconduct, be careful or this could happen to you.' "

January 22, 2010
ABC local news
Google disclosed that someone in China broke into its computers to read the e-mails of human rights activists, including a student at Stanford University. However, it is not clear to some legal experts what exactly Internet freedom is. "My guess is that it will be custom negotiated, country by country, just like we do in so many of these international treaties," Santa Clara University Law Professor Eric Goldman said. "Countries will say, 'Here's what we do for Internet freedom, we do X, Y and Z, and we don't, on the other hand, do what these other things that you object to."

January 22, 2010
Los Angeles Times
In a unanimous decision, the California Supreme Court struck down the state's specific limits on how much medical marijuana a patient can possess, concluding that restrictions imposed by the Legislature were an unconstitutional amendment of a voter-approved initiative.The court invalidated a provision of a 2003 state law passed to clarify the initiative, which states that  patients or their primary caregivers could have no more than eight ounces of dried marijuana and grow no more than six mature or 12 immature plants. The law, however, allowed patients to have more than that if they had a statement from a doctor that the amount was insufficient. "I'm very pleased. They gave us exactly what we wanted," said Gerald Uelmen, a law professor at Santa Clara University who argued the case for Patrick K. Kelly, a medical marijuana patient from Lakewood.

January 22, 2010
San Francisco Chronicle
David Yosifon wrote on op-ed on the historic Citizens United v. Federal Election Commission Supreme Court decision. Yosifon argues that "We all have a stake in effective corporate operations...If we cannot restrain corporations from influencing our democracy, then we must have more democracy in the management of our corporations. Directors of publicly traded corporations should be required to become informed about and to deliberate on the interests of all corporate stakeholders, not just shareholders." Read more...

January 20, 2010
Los Angeles and San Franciso Daily Journals
Margaret Russell wrote an article on the pros and cons of television technologies in federal courts. Russell states that "...in 2010 the tide is turning and the cameras are beginning to roll. It is time for our profession to address head-on the introduction of television technologies in federal courts. Compelling public interests are at stake, and the key question should be not whether, but how to balance these competing concerns in a technologically-advanced society. "

January 15, 2010
Los Angeles and San Franciso Daily Journals
Pat Cain wrote a Perspectives piece on the need for a federal solution to the same sex marriage issue. Cain states that the best route for a federal solution to the problem of each state having different laws is for the U.S. Supreme Court to constitutionalize the rights of same-sex couples to have their relationships recognized at the state level.

January 13, 2010
ABC 7 (Bay Area news) and San Jose Mercury News (January 17, 2010)
"China has a long memory," said Santa Clara University law professor Anna Han, who has been advising companies on doing business in China for 25 years. Han says China has a long history of cases in which intellectual property, such as trademarks and products, has been stolen. She cited recent cases that were won in Chinese courts by U.S. firms Starbucks and pharmaceutical giant Pfizer. Without knowing yet what may have been stolen, Prof. Han believes other companies will be reluctant to join Google in taking on China out of fear of losing the opportunity to do business in a country with 1.3 billion potential customers.