Shall we overcome this nonsense?

The first time I have heard the song "We Shall Overcome" was when I was 16 and was invited to a concert of students in the Moscow Linguistic University in Moscow, Russia.  

Then, in mid-70s and in the USSR, that song was already known as the unofficial anthem of the civil rights movement in the U.S.

Yet, nowadays, that anthem has become the focus of a lawsuit against a corporation claiming a copyright for that song, according to the lawsuit, stifling its public performances.

Here are the relevant portions of the complaint filed on April 12, 2016 in the U.S. District Court for the Southern District of New York, the case is called: 

We Shall Overcome Foundation et al v. The Richmond Organization Inc et al, U.S. District Court, Southern District of New York, No. 16-02725.

In November of 2016, Judge Denise Cote dismissed state claims on preemption grounds - since the majority of state claims hinge upon the main issue, whether the Defendants own a copyright to this "song".

On September 8, 2017, while allowing the case to proceed to trial, Judge Cote decided for the Plaintiffs, and removed from the trial by a partial summary judgment, this issue:

Here are the differences that were claimed to be protected by copyright:

This is the first case when I felt really, really sorry for the judge who has to go through all this nonsense about copyright of a song which has been in the public domain for more than half of a century - and her meticulous work in her dismissal decision and her partial summary judgment decision is commendable.

Look at what she had to deal with:

So, the what is "copyrighted" is subtle changes to the melody that can be made by a specific singer of the song and not an author, and which do not add anything to the originality of the work - and especially of a "song" which has been in the public domain for over 70 years.

I am not saying that to file this lawsuit was silly, no. 

It was, unfortunately, necessary if the supposed "owners" of the "copyright" to the civil rights anthem claim royalties for performing this song and stifle performance of what has long ago become a civil rights anthem.

In other words, each time anybody sings this song publicly as a means of political expression, he or she, or they must pay the "owners" a fee, or be in violation of federal copyright law (which can be enforced as a federal crime, too).

The lawsuit brings up important issues - as to the status of songs that people like so much that they become the banner of a large political movement.

This case still goes to trial on all issues other than whether the Defendants own copyright for the melody and first verse of the "song".  They don't, according to the court's decision.

Other issues in the lawsuit

- read the full decision here - are fair game at trial.

It will be, of course, a good and decent thing to do for people to just cede their supposed "copyright claim" to the public domain and settle the lawsuit.  But, it did not happen since April 12, 2016 when the lawsuit was filed, and our public funds are continued to be spent on the long fight which appears (on behalf of Defendants) to be nonsensical and bizarre.

It is interesting to mention - and the Plaintiffs in this case mentioned it - that the Defendants never pursued anybody for copyright violations in court, probably, understanding that they do not have much ground to stand on.

What will the jury say as to the remaining issues, now that the judge threw a wrench into the litigation by declaring that the Defendants do not own copyright as to the music and words of the first verse?  

I will continue to follow and report on this case.

Stay tuned.

Texas Supreme Court's "generous" permission for out-of-state lawyers - and an interesting revelation regarding the true reason for attorney regulation in the U.S.

The Texas Supreme Court magnanimously allowed out-of-state lawyers to provide services to Harvey victims - but only on a pro bono basis, and 

The Texas Supreme Court did not make a ruling for the in-state attorneys though restricting their ability to provide their services to the same Harvey victims to only pro bono.

Why is it so?

A prominent legal blog "Above the Law" explains it this way:

So, "I get the economics of out-of-state restrictions"?

"This State's bar can't have That State's lawyers flying in and scooping up all the legal work"?

So, the legal profession, in the face of a HUGE NATURAL DISASTER, that affected millions of people, is still insisting on their right to keep out outsiders who will simply charge less and provide better services - only allowing those who can afford the personal expense (travel, accommodation, being away from work and paying clients) of coming in and offering their services for free?

But, isn't occupational regulation of any profession in general, and attorney regulation in particular, imposed upon the American public (including in the State of Texas) as a way to PROTECT THE PUBLIC, not in order to protect in-state lawyers from out-of-state competition?

Yet, the disaster of Harvey and the spectacularly protective decision of the Texas Supreme Court, even in the face of this disaster, where ANYBODY will legal knowledge, with or without a license, willing to provide legal services, would be welcome, especially taking into account the amount of illiterate and poor people who would need legal help in the aftermath of the hurricane - reveals the true nature of attorney regulation.

Texas lawyers should be ashamed of its State Supreme Court, and should request to allow not only out-of-state lawyers, but non-lawyers, too, law students, people with law degrees, but without licenses, to be able to help in the aftermath of Harvey - for a minimal pay or without pay. 

And, if Harvey victims should be helped pro bono (which I am totally ok with), the Texas Supreme Court should allow help through the Internet to such people from anywhere in the world, from people with knowledge of the English language and legal knowledge, and should impose the pro bono requirement on such help universally, to every person serving such victims - without regard whether the person is a licensed attorney or not, an in-state attorney or not.

That would serve the purpose of serving the victims of the hurricane, and protecting the public from those who would want to gouge on people's misfortune - wouldn't it?

The 11th Circuit's decision re district courts' obligation to serve complaints of poor pro se litigants - too little to overcome the widespread practice of discrimination against the poor by federal courts.

The U.S. Court of Appeals for the 11th Circuit has issued a very important ruling regarding civil rights cases of indigent people:  that federal courts must themselves serve complaints of people who are given the so-called IFP status.

Yet, as important as this ruling is, it does not cancel the statute - and a very wide-spread practice - where federal trial courts dismiss pro se lawsuits of indigent people before serving them upon the opponents - as the 11th Circuit say they must do, pretending that they are "frivolous", and thus acting as advocates for the defendants.

Abolishing the statute is more in order, as this very rare case can be easily circumvented by dismissing the pro se IFP complaint and designating the appeal as "frivolous", as trial courts are allowed to do by statute, thus blocking appeals from their own decisions.

28 U.S.C. 1915(h) should be abolished as a disgusting statute allowing and encouraging discrimination against victims of civil rights violations by the government simply because they are poor.

#FederalJudgeClayDLand, an unlicensed OB/GYN - a severe case of menopause of the brain. #IStandWithAlishaColeman. #ImpeachJudgeClayDLand

I wrote on this blog earlier this year about a federal judge, Clay D Land, whose arbitrary decision to return a properly filed case from Georgia to South Carolina landed that case into the hands of local judicial mafia who catered for "their own" and disciplined an outsider attorney in an intellectual infringement case for following the law as it was written, on behalf of his wronged clients.

After that invaluable service saved the defendants from a 4.2 million dollar judgment, Judge Clay D Land

was promoted to the position of a Chief Judge of his District Court.

And, in that position he authored an opinion which I can only characterize as a menopause of the brain.

Because, the case IS about menopause.

Here is the name of the case.

Here is the complaint of Alisha Coleman, an African American middle-aged woman who is, while working, is struggling with the effects of menopause, same as many millions of American women do every day.

The complaint is trying to plead the case in the most clinical, sterile way, in the most politically correct language possible.

Yet, the facts of the case are messy and ugly - and I will present them as they were alleged, only without political correctness.

Alisha Coleman, a woman undergoing her menopause, worked for a federal contractor, provider of - guess what? - E-911 services!

And

I will translate.

Alisha Coleman's regular periods stopped, but once in a while she had breakthrough heavy bleeding and had blood clots dropping out of her.

Such bleedings can be sudden, unpredictable and very profuse.

And, as any bleeding, it can be a medical emergency, possibly a life-threatening emergency.

Let's see how much compassion Alisha Coleman got from her employer, a federal contractor, when such a sudden heavy bleeding happened to her at work.

When #AlishaColeman shared her very intimate condition with her supervisors, they expressed - concern about her health? no, of course, not - a concern that she needs this:

So - the proper thing to tell your employee who may periodically experience a medical emergency is to have enough stuff to mop her blood after herself.

Great people.

I wonder if any of them cared to look into what post-menstrual bleedings actually are, and whether commercially available "feminine sanitary devices" are able to "contain and absorb" a river of blood that may suddenly rush from a postmenopausal woman.

So, while working for this extraordinary compassionate employer, on one unfortunate occasion, Alisha Coleman had a sudden onset of that river of blood.

And, she bled so heavily that she "soiled an office chair".

Did her supervisor express a concern about her condition, took her to the emergency room to verify if she is ok?

Oh, no.  The supervisor has brought a DISCIPLINARY ACTION against a middle-aged woman for sudden heavy bleeding outside of her control, and was warned that if she ever "do that again" - meaning, if ever again a river of blood suddenly rushes from her, and she "soils" any other office furniture - she will be fired.

Apparently, the administration of the federal contractor never read the Americans with Disabilities Act requiring to provide reasonable accommodations for people with disabilities - and that would include some accommodations for Alisha Coleman, which could be as easy as discreetly purchasing a look-alike, but washable office chair for her to use. 

And - did Alisha Coleman "did it again"?

She did.

"Became episodic" is a politically correct way of saying - Alisha Coleman suffered once again from a river of blood rushing down her legs that was so profuse that it soaked through her pads, ran down her legs and onto the carpet.

In other words, they had an employee in the office who was bleeding so heavily that she bled onto the carpet.

Now, was THAT considered by the employer as a medical emergency in order to show the woman some compassion and bring her to the emergency room?

Apparently, not.

Instead, Alisha Coleman, in her condition, did this:

Think about it.

A middle-aged woman who had a likely emergency condition, thought not about her health, but how to clean the office carpet of her own blood with "bleach and disinfectant" in order not to be fired - for bleeding.

But, she was fired anyway.

And, Alisha Coleman sued.

And, Chief Judge Clay D. Land was "assigned" to her case.

Nobody can accuse Judge Land of lack of intelligence - especially when he achieved such a rare (rarest, in fact) thing as "the order of coif", having straight "As" in law school.

But, Judge Land, in order to make this egregious case of discrimination to go away, pretended to be dumb anyway: he first correctly summarized the facts of the case as alleged in Alisha Coleman's lawsuit,

but then engaged in bizarred unlicensed OB/GYN diagnostics:

• alleging that heavy bleeding from the uterus indicating the process by which the body stops its reproductive function, is not related to childbirth or pregnancy - see how this argument is contradicted in the appellate brief filed on behalf of Alisha Coleman by ACLU;
• comparing heavy bleeding, through pads and on the floor, with urine incontinence; and
• claimed that Alisha Coleman failed to allege that men were treated differently with urine incontinence than she was with her heavy bleeding.

Once again, an "order of coif" guy cannot pretend to be THAT dumb.

Moreover, it may be a shocking piece of news for Judge Land, but women have incontinence, too, so urine incontinence was not a medical condition unique to the male gender, while post-menopausal heavy bleeding is unique to the female gender.

And, since Judge Land dismissed the case at the pleading stage, without the benefit of discovery and expert reports, with his accounting and law degree, he was certainly not qualified to act as a unsworn expert OB/GYN, claim that post-menopausal bleeding is not "related to childbirth or pregnancy" within the meaning of the statute, or that it is comparable to incontinence.

So, Judge Land, without any compunction, claimed in his decision dismissing her lawsuit that the only way Alisha Coleman could claim discrimination under the Equal Protection Clause (that she was fired because of a medical condition unique for her gender) was if her condition would be related to childbirth or pregnancy - and concluded the bleeding that occurs when the woman's ability for pregnancy is winding down - is NOT related to pregnancy.

Follow the reasoning:

The statute says that a woman may not be discriminated against by her employer because of medical conditions "because of her sex" or "on the basis of sex", which, as the statute explained, "include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; ... 42 U.S.C. 2000e(k)".

This is a civil rights enforcement statute, and the rule of construction of such statutes is (1) broad, (2) liberal, and (3) to ensure that legislative intent is followed.

And the legislative intent was clearly to ensure that women are not discriminated against and certainly not fired because of their sex, including, BUT NOT LIMITED TO conditions that arise on the basis of pregnancy or childbirth, or "related medical conditions".

How could an "order of coif" judge not conclude that a uterine bleeding by which nature winds up the process of pregnancy and childbirth in a certain female is not "related" to pregnancy or childbirth - is a scientific wonder.

But he did.

Here is what this "order of coif" judge says, and this is a direct quote from his decision:

Here Judge Land could just end his atrocious self-embarrassment.  But, he felt the need to continue.

"Not terminated simply because she was "pre-menopausal or menstruating".

She did not allege that she was menstruating - she alleged that she was bleeding as part of the menopause, which is a completely different story and may be a medical emergency.

Women do not usually "menstruate" through their clothes, pads, down their legs and on the floor - it is may be an emergency bleeding, as in "losing blood", as in "bleeding to death".

Doesn't a person with an "order of coif" get that?

But, again, without the benefit of discovery and expert evidence, Judge Lance decided to act as an unlicensed OB/GYN and claim that she was simply "pre-menopausal OR menstruating".

In fact, claiming that Alisha Coleman was "or menstruating" was a statement directly opposite her allegations in the complaint, and thus a statement made by the judge on behalf of defendants, as their advocate.

But, that did not embarrass Judge Land enough either.

He rushed head on:

Dear sisters, American women.

Mothers, wives, childless women - does not matter.

The Chief Prick (not sorry) of the U.S. District Court of the Middle District of Georgia, a middle-aged man), considers it appropriate and not discriminatory if a woman is fired "for being unable to control the heavy menstruation and soiling herself and company property".

How callous and humiliating is that?

First, Judge Land, once again, falsifies the record by downplaying the facts and alleging that it was menstruation, not heavy (very heavy) bleeding - so heavy that Alisha Coleman bled onto the floor through the pads and clothes.

Next, Judge Land claims that now a woman may be fired for soiling HERSELF (and a piece of carpet) with HER OWN BLOOD during A MEDIAL EMERGENCY. 

To say that in an official document, a man and a judge must be a special kind of jerk.

But, Judge Land did not end his atrocious woman-hating and racist rant even at that, he had to continue.

Once again Judge Land is attempting to:

1. equate emergency bleeding with incontinence;
2. imply that incontinence is a medical condition attributable to male sex only; and
3. claim that alleging that in order to claim discrimination in being fired for sudden emergency bleeding on the floor in the office, a woman must somehow allege that incontinent males will not be fired under the same circumstances.

That last claim is, in fact, no less disturbing than the implied claim that a woman may be fired for an emergency bleeding - Judge Clay clearly implies that, if a federal contractor and an E-911 operator would similarly discriminate against a man for "allowing" himself to be suddenly and unexpectedly incontinent through a spillover of urine or feces despite precautions, and fires such a man, that would be ok, and Alisha Coleman then cannot sue for discrimination either.

Since Judge Land attributed emergency bleeding as BAD BEHAVIOR and a proper reason to fire a middle-aged woman, and an African-American middle-aged woman, I must add - who was herself an E-911 employee, by sad irony - can he now be IMPEACHED for bad behavior for his misogynistic rant in Alisha Coleman's case and for creating for employers in the State of Georgia a practical invitation to fire pre-menopausal women for their medical condition.

Even if he is not incontinent yet and did not soil any chairs in the courthouse.

Sick, sick man.

And, what bothers me, too, is why Alisha Coleman's complaint did not include discrimination under the Americans with Disabilities Act.

After all, I agree that in this case it is a gender discrimination.

But, it would have provided yet another basis for the lawsuit to proceed if Alisha Coleman would also claim that it does not really matter from which part of the body you suddenly bleed when you are fired for that sudden bleeding on the company chair - or carpet - from a wound on your body, from your nose, mouth, ears or from your uterus.  

Such firing is clearly still a discrimination against a temporary disability, and is equally reprehensible.

Alisha Coleman could have fell, struck her head and bled on the same floor.

Alisha Coleman could have nose-bled on the same floor.

She would have been fired, too?

One thing appears to be clear - Judge Clay D. Land has no place on the federal bench, nor should he remain a licensed attorney.

He is a disgrace to his profession.

The Human Dx project - medical care for or medical experimentation on the poor?

We have licensing of medical professionals that not many people would challenge.  People with whom I discussed the subject, as well as articles that argue that licensing of medical professionals is a necessity usually ask me the same question - will you allow an unlicensed surgeon to do your surgery?

My answer - yes, and that was already happening in Russia where I am from.

When my relatives had a surgery, when I gave birth to my children in Moscow, there were no licensed physicians there - because physicians were not licensed at that point.

A diploma from a 6-year medical college with a rigorous training schedule and rigorous exams at the end of each semester, year and 6 years, and a residency after that were enough proof of professionalism.

Here in the United States the idea of occupational licensing of medical professionals became some kind of a sacred cow - even if a physician treating you does not really know the drugs he or she is prescribing and cannot adequately explain to you the necessity or possible complications or side effects of the proposed diagnostics or treatment.

And, in the medical profession, same as in the legal profession, the advance of artificial intelligence (AI) raises the question as to - why occupational licensing is needed - more and more.

For example, I recently wrote about a controversy in South Carolina where entrenched optometrists blocked consumer use of a smart phone application accurately diagnosing vision problems in order to get cheaper prescription glasses - forcing themselves upon consumers as the necessary link to get glasses, only through a prescription by a licensed optometrist.  While such a measure provides a zero incremental value for the consumers and deprives the consumer's own choice about their own health, for their own money, it provides protection for optometrists who invested all those years and all that money into education, training and licensing, and could not let go of they grip on a diagnostic procedure that can easily be done now in your own home by a phone app.

The same is happening in the legal profession where, despite the existence of an AI research engine for several years already, and despite the availability of online dispute resolution computer systems, professional bar associations try to draw out the life of their dying profession by blocking (on "ethical grounds", of course) introduction of virtual offices where people having knowledge of the law would be able to practice that law from any point in the world that has an Internet connection, to benefit any consumer who wants to pay for that service, and through criminal "unauthorized practice of law" laws, deeming as "practice of law" what a computer bot can do without a human, trained or untrained, licensed or unlicensed - which makes no sense whatsoever.  The not so funny part is that what constitutes the sacred cow of the "practice of law", is not clearly defined anywhere.

A similar situation, eroding the alleged necessity of medical licensing, is developing now in the medical profession with the introduction of an AI project called "Human DX" which supposedly contains databases, input from participating physicians and an ability to quickly and accurately analyze diseases and conditions remotely.

The interesting quirk in marketing and promotion of the Human Dx project is that all diagnostics can be done remotely.  Supposedly, that is good to provide medical care in "remote rural areas" - in the today's "doublespeak", to provide care for the poor.

Now, would people want to "tap into collected wisdom and gain access to tests, opinions or diagnoses that" "primary care docs at smaller or remote practices" would not have otherwise?

Sure.

But, didn't all of us, at some point in life, hear from their physician "that is beyond my area of expertise, I will refer you to a specialist"?

And, aren't there disciplinary rules prohibiting physicians and other medical professionals to practice outside of their area of expertise - as a measure of protection of consumers?

Then, what is that "tapping into collective wisdom and gain access" thingy?  Who is going to diagnose "underserved patients" in remote rural areas?  

Office secretaries who would run an AI set of tests based on input of data that a nurse collected?

How would the patient subject to diagnostic procedures, know who exactly diagnosed him/her and who is responsible for that diagnosis?

How much such a remote diagnostics cost - will it up the cost of medical services because of the cost of the Human Dx project which surely does not come free?

And, the two most important questions of all -

1. will the use of the Human Dx project become mandatory for the poor, as a substitute of a referral to an actual physician, in order to save money, and 
2. does the use of Human Dx on the poor - instead of diagnosing them, as the rich will, most likely, continue to do, with the use of human physicians - amount to unlawful medical experimentation without consent?

Because it sure looks this way - whenever some supposed medical "innovation" is started not as an innovative measure in rich medical centers, but as a measure to "help underserved populations", those "underserved populations" should be immediately on a "guinea pig alert", that they may be used as part of a medical experimentation that, if it comes out all right and does not cause too many misdiagnoses, injury and deaths, can be then used on the rich.

To promote the Human Dx project, prominent physicians say things that they usually do not say about their professions - because it is prone to backfire, and it sure raises questions:

So, is the esteemed Dr. Sanjay Desay, MD saying that the presumption of fitness of licensed medical professionals claimed by the government when it imposes licensing requirement upon both medical professionals and consumers of their services is actually a lie?

That "we have no current methods for measuring [the fundamental skill of clinical reasoning]" - "aside from using a combination of the subjective opinions of more senior doctors and surrogate markers such as exams".

So, why do we need licensing then?

And, as to licensing of physicians -

• if any given disease or condition can now be easily diagnosed by "tapping into the collective wisdom", remotely, and by an AI system that has not only a superior way of assessing the "fundamental skill of clinical reasoning", but supersedes it and superimposes itself as a super-diagnostician unsurpassed by single human physicians, and
• if such remote diagnostics of a patient without seeing him by those into whose "collective wisdom" "primary docs" in remote locations will "tap", if this kind of remote diagnostics is not an ethical violation in treatment of the poor, and the poor will not even know if they were diagnosed by a physician or by an office assistant running a battery of tests on an AI,

a $100 million question is - why do we need medical licensing at all now? 

Who does such licensing protect if it does not protect the most vulnerable population, people who are indigent and, likely, less educated than the rich?

AVVO attorney referral programs and the ire of bar associations - choosing a lawyer based on actual client reviews and pro bono consultations vs presumption of fitness through licensing

New York - and several other states - continue to stifle public access to legal information and affordable legal services.

After New York successfully dragged itself, and its consumers of legal services, back into the caves for some more time by prohibiting a virtual office to out-of-state attorneys while allowing the same to in-state attorneys, it continued its protectionist policies by issuing an "ethics" opinion "cautioning" New York-licensed attorneys from participation in the referral services of AVVO - an online marketing device where people exchange opinions about lawyers, seek free legal advice from attorney-volunteers, and are referred to attorneys who are willing to take their cases.

The reason why New York state considers a referral that it would be "unethical" for an attorney to use a referral by AVVO?

The rule against "profit-sharing" between attorneys and non-attorneys - which in itself makes no sense, but referral services are not legal services.

AVVO's representatives correctly pointed out that there are anti-trust and 1st Amendment implications that the New York State bar associations fails to consider, hiding behind its reluctance to make policies - which it is making anyway.

Of course, NYSBA is not a disciplinary authority in New York State, but I bet that this opinion would be considered in a disciplinary proceeding against an attorney.

I have just one question about all of these under-carpet noises:  why wouldn't the government allow ITS OWN SOVEREIGN, consumers for whose benefits attorney licensing is established are not allowed to decide how to pick their own court representatives and which marketing source to use for that purpose?

After all, the U.S. Supreme Court has ruled more than 2 years ago already, in North Carolina Board of Dental Examiners v FTC, that regulation of any market by market participants without neutral state supervision may be a violation of antitrust provisions of federal law?  

And, a federal court has ruled that regulation of a market by a competitor is a violation of due process as to other competitors?

Might there be a concern that then the big fat pie of occupational licensing, created under the guise of "helping" consumers, will fall apart?

Not to mention that there is a presumption of knowledge of the law in this country, so it is counterintuitive (stupid) to pretend that a person is presumed to know the law in order to be put in jail, but should be presumed to not know the law in order to be "protected" from having an opportunity to choose an independent court representative he trusts for the same criminal proceeding that presumes his knowledge of the law to be put in jail.

Attorney licensing, as any other occupational licensing, is revealed more and more as an outmoded and unlawful method of protecting a group of entrenched individuals from competition - to the detriment of consumers.

And, in treatment of AVVO as an "unethical" source of referrals, the otherwise supposedly progressive New York is, by the way, behind other states that allowed such referrals, allowing their consumers to use services of lawyers who are approved by online consumer ratings and participation in pro bono consultations online.

Wasn't licensing introduced, after all, to HELP consumers in their own marketing and choice of attorneys?  Only through a PRESUMPTION of fitness through licensing - which is far from perfect.

Isn't it better to rely on statements of ACTUAL FITNESS from former clients, and upon actual performance of attorneys through their pro bono consultations online?

The ditched hopes on impartial AI judicial review

Oh, the hopes for an impartial computer-judge - which, I confess, I entertained.

Lo and behold, the Artificial Intelligence thing-y has learnt to lie, too.