Zapped- young campaign sign thief gets a jolt of reality

One of the fun things about studying law is that I am constantly readind stories in the news and thinking- that reminds me of a case.

This happened this morning when I saw a link to a story about a North Carolina man who rigged up his election sign to act basically as an electric fence. People kept stealing the campaign signs in his yard, so he rigged the sign to deliver an electric shock. And then he set up a video camera.

A 9-year-old boy tried to steal his sign and replace it with another. He got zapped and ran off.

The parents of the boy, apparently not angry that their child was committing trespass and stealing someone’s property, complained to the police.

So here’s a question- can you set up a trap to hurt thieves, when you know someone is likely to steal your property? Like so many legal questions, the answer is maybe.

We read a case in torts, Katko v. Briney, where a man rigged a shotgun trap and a thief was seriously injured when he set off the trap. You may be surprised to know that the property owner was found liable in civil court for injuring the thief.

However, the reason is a general principle that property is not as valuable as human life, so while you can use force to protect property, you can’t use deadly force. This of course is only relevant if the victim’s life is not in danger. In Katko, the victim of the theft was over a mile away, so there was no risk to his life- therefore, he didn’t have a right to seriously injure the thief.

Applying this to the campaign sign case, I would guess that since the property owner was an electrician who rigged up just the  right amount of voltage to shock, but not injure (he even tested it on himself), the Katko principle would not apply. An electric jolt, like that from an electric fence, is not deadly force, and did not seriously injure the child. So he probably would not be found liable. Then again, if the jolt injured the child, he might be.

Here is the video of the incident

DRR … steps to take now.

If you are a member of Digital Railroad, you are probably scrambling to deal with their shut down.

Photographers rushed to get their images before the shut-down. But what about the money you have spent in advance (say you paid 12 months in advance to secure a discount)?

Eleven out of 12 account members who pay annually (perhaps it is really 364 out of 365), have paid for a service that they will not be getting.

It is time to consider what rights you have here.

This situation frankly leaves me with more questions than answers as I don’t know much about liquidating a company, but I see some answers in contract law concepts. Most of this discussion is academic, since if they are truly broke, you don’t have much hope of getting the money back.

I see a few options:

• First, you can ask for a refund. Maybe you will get one. You will probably have to go through these people: Digital Railroad, Inc, c/o Diablo Management Group, 1452 N. Vasco Road, #301, Livermore, CA 94551 (I would do this sooner rather than later- they will run out of money eventually)

• You can try suing for your money back. Now is the time to contact your attorney to get advice on if you might have a chance at getting some of your money back. Certainly, the creditors will be beating down their doors, and if this ends in bankruptcy, you will be at the end of a very long line (if you have any rights at all). On the flip side, if they have been bought by another company, that company might have responsibility to pay DRR debts (your attorney should know). You will have to sue in New York Court.

• If you signed up within the last month, you might want to call your bank or credit card company and ask them if it is possible to refute the charge. Tell them that DRR has stated that they will not be providing the service that you bought.

Finally, since the website went down, so did your ability to access those terms and conditions that will guide a court in determining if you get your money back. Hopefully you kept a copy for yourself when you signed up. If you didn’t, email me. I copied the Terms and Conditions from today and will send you what I have. They were updated in August.

A couple of things that are important elements of the current terms and conditions:

• under the agreement, the law of New York apply, and any suits must be filed in New York. Lucky if you live in NY. Not so lucky if you live in Hawaii. Not so lucky either for the management company that is based in California.
• Under the agreement, their liability is limited to the amount of money that you have paid to them. (don’t try to charge them your day rate for the trouble of downloading your archive)
• Don’t expect to get anything at all from a company who has no money (although we don’t really know if they are completely broke or not)

Final notes:

• You should sign up with another service provider and migrate your workflow as quickly as possible. You don’t want the failure of DRR to cost you business.
• You should evaluate all of your other business relationships. For any vendor that you have, for any business that you rely on- ask yourself where you would be if they went under. This includes your website provider, your email system, your print fulfillment service, even your cell phone company… every service that is critical to your connection with customers. You should have a back-up plan for each of these. The economy is bad, and DRR is just one of many companies that will fail.
• For that matter, look at your client base. If your main client goes out of business, where will you turn to pick up new business. Have a plan.

Reminder. This should not be considered legal advice. For that you should consult an attorney, not a blog. As a law student, I don’t have experience or expertise in bankruptcy law, and do not practice law. This blog merely raises issues and discusses them from the perspective of the author.

F- – CC vs. Fox

This should be interesting:

On Nov. 4, the Supreme Court will hear oral arguments in a suit against the FCC by Fox, about a fine for broadcasting cuss words.

Cuss words were uttered during an awards show. Because the FCC guidelines regulate profanity over the airwaves (and a very vocal group complained), the FCC fined the network.

I’m sure lawyers everywhere are waiting to see- will the offending words be repeated before the Court? Will they be repeated during questioning by the justices (not likely)? If the words are profane, then will C-Span run into trouble when it broadcasts the audio recording of the oral arguments? If it is unfit for broadcast, will it be unfit for “the nine.”

And how do you argue about the use of a vulgar word in front of the Supreme Court of the United States, without mentioning the words, which may be interpreted as a lack of respect by the justice? That’s what makes it fun!

http://www.broadcastingcable.com/article/CA6608206.html

This issue was famously before the court 30 years ago, in FCC v. Pacifica. The case, tried in the 1978, was about a broadcast of a George Carlin skit about “seven dirty words” that you cannot broadcast. The skit was broadcast, the radio station was spanked, and a court case ensued. The result was a Supreme Court decision stating that the First Amendment does not protect vulgar and offensive speech from regulation by the FCC

Interestingly, the entire judicial opinion did not include any of the allegedly offensive words (but the transcript, in the appendix, was full of them).

New Federal Law Will Require Safety Apparel for Photographers on Roadways

Summary:

• A new law requires anyone, including journalists, working on any federally funded highway to wear high visibility safety apparel while on the road.
• Many state and local highways and roadways receive federal funds.
• High visibility safety gear includes vests and jackets, which meet the “ANSI 107-2004 class II,” standard.
• While there is no federal penalty or fine for non-adherence – breaking the rule could affect photographer’s liability if there is an accident.
• Non-adherence may also increase the risk of being injured by a vehicle.
• Photographers should be aware of states which may have local ordinances that could include fines or other penalties.

A new law goes into effect on November 24, 2008, which will require all workers on federal highways to wear high visibility safety apparel (23 C.F.R. § 634.3).

While the law does not specifically list members of the media, it includes “people on foot whose duties place them within the right-of-way of a Federal-aid highway, such as…responders to incidents within the highway right-of-way.”

The Department of Transportation has repeatedly stated that it considers the media to be included under this law. During the legislative comment period the DOT received requests to expand the definition to include media workers. The Federal Highway Administration responded that the term “responders to incidents” includes media representatives.

There is no specific federal fine for individuals who fail to comply. However, compliance is advisable for several other reasons. Hari Kalla of the Department of Transportation says that lack of compliance by agencies and states will directly affect funding of road projects. Because of this, states will likely enact follow-up legislation to encourage compliance. It is those rules may involve fines or other penalties for photographers who fail to comply with the rules.

Additionally, persons not wearing appropriate safety gear may bear increased liability if injured in an accident. By not wearing the gear, photographers who are injured in an accident may be considered partially at fault under the concept of contributory negligence (violated a law creates a legal presumption of negligence). If all other workers at a scene are wearing high-visibility clothing, a photographer who is not will not only be the least visible person at the scene and will therefore be at a greater risk of being hit by a vehicle but may also subject themselves to being barred from stopping on the roadway because of said non-compliance.

A “federal-aid highway” is defined as any road that has used federal funds in its construction and/or maintenance. State departments of transportation usually have maps available that indicate which highways are federal aid highways. According to Kalla, state and county roads are usually federally funded while local and rural roads usually are not.

In order for garments to qualify as high visibility safety apparel they must meet a standard known as “ANSI 107-2004 class II.” A Google search for “high-visibility garment” or “ANSI 107-2004” results in a wide variety of available outlets that include vests and jackets. Compliant garments should have a tag that reads “ANSI 107-2004 class II.”

While the use of reflective tape on regular clothing does not comply with the standard, compliant vests can typically be purchased for under $20.

Camera theft

Just in case you thought you were paranoid for insisting that you carry-on camera equipment, here is an article about a TSA agent who stole hundreds of thousands of dollars in camera gear. Including a $50,000 camera from CNN.

Never pack your electronics.

Apparently, you should also check ebay if your stuff is ever stolen.

Happy Shooting.

Photographers and voting

Today (Oct. 6) is the last day to register to vote in Texas before the general election. Why does this matter? Well, if the opportunity to vote for president in a moment of historical importance doesn’t move you, think about this.

When you need something from your political representative (say you want them to vote a certain way on a bill about orphan works), they want to know if you matter when they run for re-election. They can easily look you up and can find out when the last time you voted, if you vote in primaries, etc.

Many states have Oct. 6 as the deadline to register to vote. If you haven’t already done so, register today and vote.

Orphan works dead? Don’t be so sure.

It’s amazing how fast unsubstantiated news travels. Many bloggers have been reporting that the Orphan Works Bill is dead. This seems to be based on a blog article in Wired, who quotes unnamed lobbyists.

The blog post states that the bill passed the Senate and then landed dead on arrival in the House. In fact it was referred to the Judiciary Committee where it still can be agreed to and presented to the House. If you think the House is too busy, remember that the Senate was also busy dealing with the economy on Friday.

Here is the status of the Senate Bill. As of this post, it has been referred to the House Committee on the Judiciary. It is up to them whether they will abandoned their previous bill H.R. 5889 in favor of this one, or wait to start over next year.

Even though members of the House Judiciary Committee may not favor the Senate Bill, they are under enormous pressure from lobbyists to pass the Senate Bill.

This means that the bill is not dead. It may be “less likely to succeed,” but I am not going to start sleeping about this issue. “Not likely” and “dead” are two different things.

P.S. If you live in San Antonio, or Austin, or other Texas cities in District 21 (which is a poster child for gerrymandering), your congressman might be Lamar Smith, a co-sponsor of the house bill. You voice really counts. He, like every other House Rep., is running for re-election. He is being pressured to pass the Senate Bill and needs to know that his constituents don’t want it.