42 - May 2010
Last month the advice on what to do if you were caught using content on your website which was not yours was the most popular Law & Disorder article ever. Pushing into second place the ever popular cross examination of a Chinese undercover policeman regarding his alleged investigations in an alleged brothel ( see http://101reasonstokillallthelawyers.com/ reason no. 31).
Behind every heroic legal action there is a lawyer advising against it
Most lawyers advise their clients against suing others unless there is no other alternative. Clients find this frustrating and it has over the years led to disappointment with the legal profession.
Many clients are no longer ready to be denied, what they rightly suspect is the absolute joy of slapping a writ on their enemy. Of course, litigation is expensive but with increasing wealth, clients have ample resources to engage in court actions even if it means the sale of their home. As for the stress, many see a court experience as excellent material for a book and therefore worthwhile.
Commencing a court action is something that you only do once, unless you have a very understanding spouse. Therefore, it is essential to get it right.
Sadly, many clients come to a lawyer having already chosen a target. They may want to sue passing motorists, retailers or old boyfriends. This is such a waste. Other clients will risk having to move house by suing their neighbours or put a blot on their resume by suing their boss.
If asked, lawyers can direct clients to safer ground on which to conduct litigation such as their social club committee where disputation and outrage is regarded as quite usual be it golf, Rotary, tennis etc. Clients should avoid the more argumentative members and target the treasurer or secretary as these positions attract the more sensible members of the club who are more likely to give up in the face of senseless litigation. Club members seem to enjoy any disaster which befalls their treasurer or the secretary and your decision can prove very popular.
After service of the writ a lot of the fun can go out of litigation and therefore it is important to choose the right target for a quick victory.
Lawyers advise clients to avoid litigation but if you are dealing with unscrupulous people sometimes you have no choice.
(c) Paul Brennan 2009 is a lawyer practising in on the Sunshine Coast, Queensland and is author of “The Law is an Ass-Make Sure it Doesn’t bite yours!”
The Law of Lists
Many societies and organisations have lists of their members containing their addresses etc. which they reproduce in say a diary. Often the word copyright or a “(c)” is used to denote that such lists are protected. If you use the list there may be a false name buried within it which can be used to prove that you copied it. Copyright is about copying and if you produced a list containing the same information from your own efforts, without copying a substantial part of the orgainisation’s list there is no copyright infringement.
For years, the compilers e.g. telephone books, albums, databases, lists etc. have been elbowing their way into the copyright arena to gain the benefit of the protection afforded to copyright holders. They have been stamping things with the word “copyright” and launching actions, much to the horror of the artists, writers and creative types that copyright was intended to protect. Of course, many of these creative types have sold their souls by assigning their copyright to publishers, film studios, software and music companies. However, in the world of copyright it is the principle that counts. Anyway, it is the vested interests who have, through convention and aggressive lobbying, increased and internationalised copyright protection to levels that lawyers could describe as “awesome”, but don’t.
Some compilations can take a great deal of time, money and effort to put together and it seems wrong for someone else to copy and use it without payment. On the other hand it may be wrong for vital information such as TV schedules and racing results to be in the hands of just one entity.
Copyright requires some creative spark of originality, of independant intellectual effort. This seems to be lacking in a computer generated list and probably anything produced by an accountant. There seems to be too little intellectual effort in a telephone directory despite the substantial labour and expense in its production.
Does this mean that you can take any raw data that you want? Yes, copyright does not protect raw data, facts and information. However, if it is put together in an original and slightly clever way such as a dictionary, you cannot simply copy the compilation without permission.
So where does this leave you? It is probably alright to copy the information in telephone books and lists of members. It depends how much of a fight the entity may put up. There are all sorts of other arguments an aggrieved information holder can advance such as breach of confidence, trade mark infringement and/or copyright infringement of some part of the work that does not relate to the compilation e.g. music, words, pictures etc. The law may inconveniently change, for instance in Europe they have enacted a database right to protect some lists.
As an entrepreneur you should seek legal advice before you base your venture on someone else’s effort without paying for the right to do so unless, it is the effort of your parents and then it is usually quite acceptable.
I have always been very proud of my son but now he tells me that he wants to put me in a home.
You are not alone. Many parents grow to actively dislike their adult children. They tend not to show it but engage in a campaign of civil disobedience in collaboration with their grandchildren e.g. buying peeing puppies, financing vomit inducing chocolate binges and fast food extravagances, permitting late and inappropriate movie sessions etc. Grandparents can find combining this with breaking wind at inopportune moments very satisfying.
Understandably sons often egged on by wicked daughters-in-law start to give hints about retirement homes at any time after their parents 55th birthday.
Your lawyer will advise you of the 5 point “We Are Staying Put, Son” (“WASPS”) strategy. Use this to make your son’s interjections into your life a less pleasurable experience for him until he backs off.
As one grandfather said “keep your enemies close and your adult children even closer”.
John Fytit is the name of the central cartoon charter in Law & Disorder cartoons which started in Hong Kong in 1992. He is from the fictitious Hong Kong firm Fytit & Loos (pronounced “Fight it and Lose”). A very unsuccessful name as people read “Fytit” as “Fit it”. The International Problem Page started in 2005 and was merged into Paul Brennan’s blog. But, not before John Fytit started to receive real legal questions from various parts of the world.
To be Released in August 2010
On the evening of 19 May 2010 Paul Brennan will be speaking on IP at Kawana Chamber of Commerce. Click here for details and to book.
45sm of commercial office space (large room) in Brennans offices.
The content of the Law & Disorder eZine is to give you legal basics and in some instances included unashamedly to try and make you laugh. In law it is sometimes difficult to work out what is serious and what is just for fun. Therefore, if you plan to do anything legal, rely on your own lawyer’s advice or instruct me to look at the particular facts of your case. Not only will I deny responsibility for the legal content but also for some of the jokes.
Author of the The Law is an Ass...Make Sure it Doesn't Bite Yours!