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Tag Archives: United States Court of Appeals for the Second Circuit

Second Circuit Decision Gives Libraries Full Advantage of Fair Use.

27 Sunday Jul 2014

Posted by Celia C. Elwell, RP in 2nd Circuit Court of Appeals, Fair Use, Intellectual Property

≈ Comments Off on Second Circuit Decision Gives Libraries Full Advantage of Fair Use.

Tags

Authors Guild v. HathiTrust, Fair Use, Google Book Search, Intellectual Property, Libraries, Mass Digitization, Savings Clause, United States Court of Appeals for the Second Circuit

What Does the Hathitrust Decision Mean For Libraries?, by Jonathan Band, LLRX.com

http://www.llrx.com/features/hathitrust.htm

The library community welcomed the decision of the U.S. Court of Appeals for the Second Circuit in Authors Guild v. HathiTrust, __ F. 3d __, 2014 WL 2576342 (2nd Cir. 2014). [Note – a copy of the decision is available here via EFF]. The decision has implications for libraries that go far beyond the specific facts of the case. This paper offers some preliminary thoughts on what these implications may be.

The broadest implication of decision arises out of a footnote. Ever since the adoption of the library exceptions in 17 U.S.C. § 108, rights holders have argued that section 108 limits the availability of fair use to libraries, notwithstanding the savings clause in section 108(f)(4) that states explicitly that ‘nothing in this section in any way affects the right of fair use as provided by section 107.’ In this litigation, the Authors Guild repeatedly argued that section 108 restricted fair use. Judge Baer rejected this argument in the district court, and the Second Circuit rejected it again in footnote 4. Citing the savings clause, the Second Circuit stated that ‘we do not construe § 108 as foreclosing our analysis of the Libraries’ activities under fair use….’ HathiTrust at *4, n. 4. Thus, the decision holds unambiguously that libraries may take full advantage of the fair use right.

The decision also demonstrates how the fair use right applies in the context of a specific library activity: mass digitization. . . .

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Proper Punctuation Matters, Especially When Drafting Contracts.

25 Saturday Jan 2014

Posted by Celia C. Elwell, RP in 2nd Circuit Court of Appeals, Contract Law, Legal Writing

≈ Comments Off on Proper Punctuation Matters, Especially When Drafting Contracts.

Tags

Adams On Contract Drafting Blog, American International Group Inc., Bank of America Corp., How Things Work, Julia Layton, Ken Adams, Legal Writing, Punctuation, United States Court of Appeals for the Second Circuit

My Forthcoming Article, “Bamboozled by a Comma: The Second Circuit’s Misdiagnosis of Ambiguity in American International Group, Inc. v. Bank of America Corp.” by Ken Adams, Adams On Contract Drafting Blog (to be published in 16 Scribes J. Legal Writing (forthcoming 2014).

http://tinyurl.com/kzvf8e2

It may sound picky but, as Ken Adams’ example illustrates in this post, proper punctuation matters. A misplaced comma can completely change the meaning of a sentence.

A refresher on how to use commas properly never hurts. Julia Layton explains “10 Completely Wrong Ways to Use Commas” on How Stuff Works. -CCE

http://people.howstuffworks.com/10-wrong-ways-to-use-commas.htm

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Second Circuit Denies Officers’ Qualified Immunity.

22 Wednesday Jan 2014

Posted by Celia C. Elwell, RP in 2nd Circuit Court of Appeals, Appellate Law, Criminal Law, Evidence, Excessive Force, Fourth Amendment - Search & Seizure, Governmental Tort Claim Act, Litigation

≈ Comments Off on Second Circuit Denies Officers’ Qualified Immunity.

Tags

Adam Klasfeld, Confidential Informant, Courthouse News Service, Drug Paraphernalia, Drugs, Excessive Use of Force, Fourth Amendment, No Knock Warrant, Qualified Immunity, U.S. District Judge Lawrence Kahn, U.S. District Judge Rosemary Pooler, United States Court of Appeals for the Second Circuit, Weapons

Botched Drug Bust Sends Investigator to Court, By Adam Klasfeld, Courthouse News Service

http://www.courthousenews.com/2014/01/22/64741.htm

 When law enforcement execute a search warrant on a residence, officers can use the “knock and announce” rule. Police knock on the door, announce their  intent to enter, and wait a “reasonable time” for the resident to open the door. Obviously, this approach has its drawbacks. Officers’ announcement of their presence before entering the residence can cause possible destruction of evidence and/or endanger the officers or others.

Law enforcement has another option – the “no knock” rule, which is just what it sounds like. Officers can obtain a search warrant to enter without knocking and announcing their presence or intentions before entering the residence. To obtain a no-knock warrant, the officers need to prove to the judge issuing the warrant that the officers are not disregarding reliable information indicating that this type of use of force is inappropriate. When procedures are properly followed, the involved officers have qualified immunity if the homeowner later sues for damages or excessive use of force under the Fourth Amendment.

When issuing a no-knock warrant, the police kick in or knock down the door to enter the residence. Regardless of the method, the door is often completely knocked off its hinges. In this Second Circuit case, the effect was even more dramatic. Around 6 a.m., Ms. McColley, a mother, and her young daughter woke to the sounds of the police knocking down the front door and the explosion of a flash bang grenade. -CCE

An immunity defense is premature for the drug investigator who led a turbulent raid on the apartment of a family with no criminal history, the 2nd Circuit ruled.

*     *     *

Michael Riley, an investigator for the Rensselaer County Drug & Gang Task Force, obtained the warrant days earlier based on the word of a confidential informant.

Though the CI claimed to have bought crack-cocaine from a man named Sport at the apartment, Riley conducted a background check on the property that revealed McColley as the tenant with her spotless record and young child.

He applied for the no-knock warrant anyway without mentioning the background check, the two-judge majority found.

‘The search of McColley’s home did not uncover any money, weapons, drugs, drug-related paraphernalia, or any evidence of criminality of any kind,’ Judge Rosemary Pooler wrote for the court. ‘The ERT took only a National Grid electric and gas bill and a registration bill for Hudson Valley Community College as fruits of the search.’

Accused of violating McColley’s Fourth Amendment rights, Rensaleer and Riley claimed qualified immunity, but U.S. District Judge Lawrence Kahn denied them summary judgment.

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Judge Scheindlin and the Second Circuit to date.

12 Tuesday Nov 2013

Posted by Celia C. Elwell, RP in 2nd Circuit Court of Appeals, Case Law, Court Rules, Federal District Court Rules, Judges, Recent Links and Articles, Research, Statutes, Trial Tips and Techniques

≈ Comments Off on Judge Scheindlin and the Second Circuit to date.

Tags

Hercules and the Umpire, Hon. George Richard Kopf, Judge Scheindlin, Removal of federal judge, Stop-and-frisk, United States Court of Appeals for the Second Circuit

I have been following the updates about Judge Scheindlin on Judge Kopf’s blog, Hercules and the umpire. If you recall, this series began with Judge Scheindlin’s ruling on the current stop-and-frisk law in her jurisdiction, and her subsequent, hasty, and unprecedented (to my knowledge) removal by the Second Circuit of the Court of Appeals.  All related posts are below, and start with the first post by Judge Kopf. The Comments are equally interesting. CCE

What do you think about the Second Circuit’s removal of Judge Shira Scheindlin? – http://bit.ly/1cyvhiH (Posted here on November 2, 2013)

 A Cheat Shot – http://herculesandtheumpire.com/2013/11/03/a-cheap-shot/

More on “relatedness,” Judge Scheindlin and the Second Circuit — http://bit.ly/1cTmax4

In answer to Scott H. Greenfield regarding the Second Circuit’s treatment of Judge Scheindlin — http://bit.ly/17EEqZ9

“Do not go gentle into that good night . . . ” Dylan Thomas and Judge Scheindlin – http://bit.ly/1a39Re3

The filing by counsel for Judge Scheindlin — http://bit.ly/1c1GXcL

Kopf’s questions about the continuing but utterly depressing cage match at the Second Circuit? — http://bit.ly/1blVy2F

End it quickly – http://herculesandtheumpire.com/2013/11/11/end-it-quickly/ (Posted here on November 12, 2013)

A must read essay on Judge Scheindlin and the Second Circuit — http://bit.ly/19XlseL  (Posted here on November 12, 2013)

Judge Scheindlin was wrong to enter the fray at the Second Circuit — http://bit.ly/1eJ21tw

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What do you think about the Second Circuit’s removal of Judge Shira Scheindlin?

02 Saturday Nov 2013

Posted by Celia C. Elwell, RP in 2nd Circuit Court of Appeals, Appellate Law, Case Law, Court Rules, Federal District Court Rules, Federal Law, Legal Ethics, Recent Links and Articles, Research, Trial Tips and Techniques

≈ Comments Off on What do you think about the Second Circuit’s removal of Judge Shira Scheindlin?

Tags

New York City Police Department, Removal of federal judge, Shira Scheindlin, Stop-and-frisk program, United States Court of Appeals for the Second Circuit

As always, Judge Kopf asks an interesting question. CCE

Hercules and the umpire.

Judge Scheindlin is a New York federal trial judge who has taken senior status.* She was handling high profile cases involving New York’s “stop and frisk” practices. She issued an opinion providing remedial relief and an injunction to the folks who were challenging the police department’s practices, and up the case went to the Second Circuit. On Thursday, without ruling on the merits of the appeal, and acting on its own without a request from the appellants, the Second Circuit removed Scheindlin.  The Court stated that the trial judge had violated the Code of Conduct and failed in her responsibility to uphold the appearance of impartiality (1) because of her statements to the parties regarding “related” cases and (2) because of interviews she gave to the media. The Second Circuit’s short opinion is here. Liberal legal commentators exploded in outrage. See, for example, here and here. The…

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