Author Archives: Gary Nissenbaum

The Increasing Pace of Digital Change: Why Does Our Culture Always Seem so Blindsided?

I have previously written about the legal implications of augmented reality apps such as Pokémon Go. Mine was one of many articles on this topic, most of which decried the negative implications of AR technology. The basic premise was that society is not prepared to effectively deal with the social and legal consequences of augmented reality; for example, the types of legal claims that will be asserted for property damage, personal injury, invasion of privacy, sharing of private data, etc.

However, there is another perspective which most of us who write about these matters have not addressed: why has all of this so blindsided our culture at large? That is also a question worth asking.

Let’s start with the fact that many of my law firm’s clients in the industry, e.g. developers, licensors, IT professionals, have been speaking about this. But why have so many of our political, business and media leaders not been listening? The science fiction writer William Gibson famously said “the future is already here—it’s just not very evenly distributed.” Perhaps we might now add the corollary that the future has arrived, but most are not aware of it.

Articles sounding the alarm about the unintended consequences of such advances as the advent of augmented reality tend to promote knee jerk reactions among the leaders of our cultural institutions. However, that only provides the appearance of addressing the issues—the proverbial “debate by bumper sticker”—but it ignores the complexity of the underlying social impact of the increasing pace of change in our digital world. Setting aside the often-discussed legal challenges engendered by augmented reality apps such as Pokemon Go, here are a few examples of other some digital quandaries that confront us:

  • Are the IT best practices that are being implemented to secure the digital information of businesses in America so inadequate that a complete reordering of those protocols nationwide is necessary? In other words, is it possible that our best practices regarding security are not really the best practices available?
  • While it is true that there have been almost no deaths nor injury resulting from prototype driverless cars, it is likely that when they are introduced on a larger scale, it will result in at least some such tragedies. As discussed in a recent Newsweek article, will we be more comfortable accepting the high number of deaths caused in whole or in part by human fallibility (approximately 33,000 annually) than we are respecting an even infinitesimally small number of deaths caused by malfunctioning computers?
  • If a MOOC (Massive Open Online Course) is relatively free and the equivalent coursework while matriculated at an institution of higher learning is in the $40,000 – $60,000 range, is the difference in cost proportional to the benefit of actually attending that school?
  • How can digital technology improve speed and access to our court system, an institution whose rules and traditions are still largely unchanged from the period before the computer age? Setting aside the admitted incremental improvements such as e-filing and internet access in the courtroom, why can’t we go beyond that so that Americans can have access to a digital library of all litigation documents and view streaming video of all hearings and trials in our court system? True, there would need to be certain privacy protections put in place; the access would need reasonable limitations. However, most attorneys would agree that the process of opening up our court system to the public has generally not kept pace with the improvements in our digital world.

The surprised, and to some extent panicked, debate over the advent of augmented reality apps highlights that our cultural institutions are largely incapable of anticipating the increasing pace of technological advancement. Something has to be done to improve the capacity of those sometimes sclerotic cultural institutions to adapt more quickly.

Perhaps one solution is to redouble our efforts to build bridges with receptive politicians, journalists and business leaders in order to educate them about the otherwise obscure cyber-world. I fully acknowledge that many of them are simply not willing (nor sometimes capable) of considering a nuanced treatment of these complicated issues. Nevertheless, our culture needs to find a way to be more open to debating the role of digital technology without sensationalizing it, nor dumbing it down. The more this debate centers on facts rather than fear—a real assessment of what is likely to happen, rather than dwelling on an attenuated prediction of the worst (or best) that might occur—the more productive the discussion will be. Real communication about real issues in an ongoing dialogue is the key. Your thoughts?

Does The New Jersey Civil Rights Act Authorize A Private Cause of Action Against A Person Who Is Not Acting Under “Color Of Law”?

What started as a local town hall debate over a liquor license renewal ended as a state-wide lesson in grammar from the New Jersey Supreme Court.

New Jersey’s highest court ruled last month that the phrase “person acting under color of law” found in N.J.S.A. 10:6-2(c) is not modified or limited by the phrase’s surrounding grammar.  Therefore, the phrase applies to both deprivation and interference claims brought by private party plaintiffs.  Perez v. Zagami, LLC, Supreme Court of New Jersey (DDS No. 46-1-3947) (Decided May 21, 2014).

Zagami, LLC applied to the Borough of Glassboro for a liquor license renewal.  Luis Perez, a Borough resident, opposed the renewal and testified at the renewal hearing.  Zagami later used Perez’s testimonial statements as the basis for a defamation suit against Perez.  The Appellate Division of the Superior Court of New Jersey ultimately dismissed the defamation case, ruling that Perez’s statements were made during a quasi-judicial proceeding and were entitled to absolute immunity.

Perez then sued Zagami for malicious use of process.  The Trial Court granted Zagami’s motion to dismiss and denied Perez’s attempts to amend his complaint to include a Civil Rights Act (CRA) claim.  The Trial Court concluded that the CRA only authorizes private suits against persons acting under “color of law.”

The Appellate Division of the Superior Court of New Jersey disagreed with the lower Trial Court and found that Zagami’s defamation suit was largely transparent.  The Appellate Division allowed Perez to amend his complaint and include a CRA cause of action against Zagami for a “deprivation” of his civil rights.  Citing N.J.S.A. 10:6-2(c), which authorizes a private right of action for deprivations of or interference with protected civil rights by a person acting under color of law, the Appellate Division concluded that the “color of law” language applied only to the clause governing “interference” claims.

The Supreme Court of New Jersey disagreed with both lower courts by holding in Perez that the lack of a comma preceding the phrase “by a person acting under color of law” does not modify the phrase.  Instead, the phrase applies to both deprivation and interference claims brought by private party plaintiffs.  The Court explained that such an interpretation of the phrase was in alignment with both legislative intent and the federal cause of action governed by § 1983.

© 2014 Nissenbaum Law Group, LLC

A Copyright Lawsuit that Never Gives Up: the Litigation Over the film “Raging Bull”

The film, Raging Bull, was released in 1980. It won the Academy Award for Robert DeNiro as Best Actor. The film was the subject of a copyright lawsuit that was filed by the estate of the person who wrote a 1963 screenplay upon which she alleged it was based. In 2009 the United States Court of Appeals for the Ninth Circuit dismissed the case as out of time. The reason was that, although the 3 year statute of limitations was not a problem since the infringement was ongoing, the doctrine of laches applied.

In that case, Petrella v. Metro-Goldwyn-Mayer, Inc., 695 F. 3d 946 – Court of Appeals, 9th Circuit 2012, the court discussed the concept of laches, a doctrine of law that states a party cannot sit on its rights, but must vigorously assert them in a timely manner. In the event that the other side is prejudiced by the fact that the rights were not asserted earlier, a court can sometimes dismiss a claim because it would be inequitable to allow it to continue. This would be so even in the absence of a violation of the statute of limitations.

However, last week that case was overturned by the United States Supreme Court.  The court held that , “[t]o the extent that an infringement suit seeks relief solely for conduct occurring within the limitations period . . . courts are not at liberty to jettison Congress’ judgment on the timeliness of suit.” This is an important decision because it strengthens the protection of the right of a plaintiff to bring a copyright claim many years after the initial infringement, so long as the statute of limitations is not violated. It is important to note that the court did state that there might be certain situations in which it would be simply inequitable to allow the case to proceed, not withstanding that the statute of limitations would otherwise allow it. However, such circumstances would have to be extraordinary.

© 2014 Nissenbaum Law Group, LLC

May a “Floating Forum Selection Clause” be Enforced by a New Jersey Court?

May a New Jersey Court enforce a floating forum selection clause in which someone from another jurisdiction is required to appear in New Jersey? The issue was recently dealt with in Professional Solutions Financial Services v. Cregar et al.  Superior Court of New Jersey, Appellate Division, Docket No. A-2239-11T3 (February 28, 2013).

In that case, the Court first defined the term, “floating forum selection clause” as one in which the signatory to a contract agrees that jurisdiction to enforce that contract will be in a different location according the prevailing circumstances at the time it is enforced. In Cregar, the clause stated:

You [Cregar] agree this Lease is to be performed in Dade County, Florida and this Lease will be governed by the laws of the State of Florida. You consent to personal jurisdiction and venue in the State or Federal Court located in Miami, Dade County, Florida . . . . You specifically agree to waive any right to transfer venue and that agreement is knowing and voluntarily and is an essential term to Lessor’s willingness to enter into this Lease. If this Lease is assigned by Lessor, You consent to personal jurisdiction and venue in the State or Federal Court located where the Assignee’s Corporate Headquarters is located. This is known as a floating forum selection clause and You agree that this is done knowingly and voluntarily and is an essential term to Assignee’s willingness to take an assignment of this Lease. You specifically agree to waive any right to transfer venue and that agreement is knowing and voluntary and is an essential term to Assignee’s willingness to take an assignment of this Lease.

Emphasis added.

After the lease was executed, Cregar stopped making payments. Cregar was sued in Iowa and did not enter an appearance.  As a result, a default judgment was entered against him.

Cregar lost his motion for relief from the judgment and appealed, stating that he was denied due process and that it was an error to use the floating forum selection clause to apply Iowa law instead of New Jersey law.  The Appellate Division rejected his arguments.

The Appellate Division ruled that a sister state’s judgment is enforceable absent a due process violation.  The Court held that Cregar was given adequate notice of the lawsuit, and he entered into an agreement which required him to litigate any disputes where the assignee’s headquarters was located.

Although the Court acknowledged that New Jersey law might not authorize a floating forum selection clause, that was irrelevant. Since Iowa law did, the judgment would be enforced in New Jersey.

© 2014 Nissenbaum Law Group, LLC