Declarations and Exclusions

Weekend Update: Rakofsky v. Internet Week 8 ―4th of July "The Fireworks Factory is Hiring!" Edition

This is the seventh in the ongoing series of posts compiling the most recent publicly available developments surrounding the litigation Commonly Known As Rakofsky v. Internet, in which New Jersey attorney Joseph Rakofsky has sued some 81 media organizations, professional institutions and, above all, individual legal bloggers, claiming that he was damaged by those defendants' publication of reports and commentary on his performance as defense counsel in a murder trial in Washington, D.C., and issues appurtenant thereto.  All installments in this series are collected in the Rakofsky v. Internet category of this blog. 

Pleadings/Court Filings

In the early going, it was a quiet week in Rakofskyworld, so quiet that by Thursday morning it had begun to seem that there might be no cause to produce this edition of the Update.  A lull in anticipation of the long Independence Day weekend, perhaps?  No: the calm before the latest burst of sound, fury and fireworks.

As always, action in the courthouse has been monitored and reported by [my co-defendant and New York local counsel] Eric Turkewitz.  The week began with Eric uploading the partial opposition, on behalf of the Group of 35 defendants he represents, to the motion of Rakofsky's current counsel, Richard Bourzoye, to withdraw from the case.  The partial opposition only addresses concerns over leaving Joseph Rakofsky's law firm, a professional corporation, unrepresented.  While Rakofsky, or any other litigant, is permitted to represent himself as an individual, business entities can only appear and participate in litigation via an attorney.  There is concern that, if Bourzoye withdraws without new counsel stepping in on behalf of the professional corporation, neither the defendants nor the Court will have any lawful way of interacting with that plaintiff in moving the case forward.

On Thursday,. June 30, Eric updated yet again his post concerning the initial procedural motions―seeking admission of Marc Randazza pro hac vice and requesting a single response date be set for the filings of all defendants―filed on behalf of the Group of 35.  It seems that Rakofsky has attempted something of a "bait and switch," swapping out an earlier, objectionable set of papers over his own signature in favor of an altered set over the signature of his counsel, Bourzouye.   The procedural and evidentiary problems posed by that move compelled Turkewitz and Randazza to file sur-replies, bringing the issue to the Court's attention and attempting to set matters straight.  The written submissions relating to those motions are now complete, but a ruling on the substance of the motions has yet to issue. Similarly, the motion of Bourzouye to withdraw as counsel and the previously reported motions of other defendants to dismiss on jurisdictional and substantive grounds, remain pending.

Rakofsky Online

In last week's Update, I discussed [defendant] attorney Mark Doudna, who found himself dragged in to the Rakofsky litigation based upon a blog post that was written and posted in his name, but was in fact authored without his input by an outside marketing consultant.  "[A] parable of legal services marketing," I called it, "offering lessons galore for those who will learn them." This week, writing at Simple Justice, [defendant] Scott Greenfield was prepared to look more deeply at those lessons in his post, "Doudna Takes a Magic Bullet."

Earlier today, through the efforts of Angel Martin, the term "Rakofsky Effect" found its way in to the Urban Dictionary. 

Perhaps the most unexpected online development of the week was revealed by [non-defendant] New York attorney Joe DePaola on Twitter when he pointed to the appearance yesterday of this most intriguing legal job listing, on Craigslist:

Attorney of Record in NY (Trial Lawyer...MUST READ BELOW)

In your reply, please acknowledge the points listed below. ($200 a month plus $150 per Court Appearance.)

1) This is a Defamation case that was filed only a couple of months ago; it is brand new.  If the case survives the motions to dismiss, I assume it will be 2 or 3 years before it is over. There are many, many defendants and once they learn who the lawyer is who I will hire as the Attorney of Record, they will almost certainly engage in character assassination of that person and attempt to ruin that lawyer's reputation on the Internet.  I do not know for a fact that this will happen, but I believe that it is a possibility.

2) The lawyer should be EXTREMELY aggressive in the Court room. It is helpful if you have experience in Defamation. Obviously, trial lawyers who intimately know the CPLR will be the strongest candidates.

3) Please, no resumes.  Just briefly tell me about your experience.

4) While I will be responsible for most of the drafting, I will have legal and procedural questions that I could need you to answer.  You will also need to proof read our documents.

5) You must become an expert in my case.  You must know all of the defendants, all of their arguments, etc.  Thank you.

The listing does not identify the potential client by name, so it is not certain that this was posted by Joseph Rakofsky or has anything to do with his case. The circumstantial similarities and the poster's attitude toward the case and his opposing litigants all tend to suggest, strongly, that if the listing is serious―this is the Internet, reader, so the possibility that this is merely commentary, metacommentary, or spoofery must always be borne in mind―it originates in Rakofsky's effort to replace Bourzoye at the counsel table.  So to New York area practitioners we say:

If your dream position for the next 2 to 3 years is as an aggressive, expert proofreader and civil procedure tutor, if you are prepared to place your reputation on the line, and if you are prepared to do it all for $200 per month, Destiny is calling. 

The Rakofsky Weekend Update will return to Decs&Excs next week, barring the unlikely event that nothing happens in Rakofskyworld in the next seven days.

~~~

Disclosure/Disclaimer: I am a defendant in the Rakofsky case, one of the jointly defended group I refer to above as the "Group of 33 35," because of my having written this post; I commented previously on my involvement in the action here.  To the extent that I may have any non-public information concerning the case, my policy is not to share it in these update posts.

[Defendant] Mark Bennett continues to maintain and update a thorough compendium of links to Rakofsky-related posts on his blog, Defending People.  My own selection of links is purely subjective and not necessarily comprehensive.  I recommend regular consultation of the Compendio Bennetticus for the fullest range of blog responses to Rakofsky v. Internet.

The progress of the case through the courts is also being monitored on the Rakofsky v. Internet "Threat Page" maintained by the Citizen Media Law Project.

Weekend Update: Rakofsky v. Internet Week 7

This is the sixth in the ongoing series of posts compiling the most recent publicly available developments surrounding the litigation Commonly Known As Rakofsky v. Internet, in which New Jersey attorney Joseph Rakofsky has sued some 81 media organizations, professional institutions and, above all, individual legal bloggers, claiming that he was damaged by those defendants' publication of reports and commentary on his performance as defense counsel in a murder trial in Washington, D.C., and issues appurtenant thereto.  All installments in this series are collected in the Rakofsky v. Internet category of this blog. 

Pleadings/Court Filings

The frightful momentum of the avalanche of motion and pleading filings grew apace this past week, as regularly monitored and ably reported by [my co-defendant and local counsel] Eric Turkewitz:

Rakofsky has filed an opposition memorandum to the pending motions by the collectively-appearing Group of 35 [formerly 33] defendants, seeking admission of Marc Randazza pro hac vice and requesting a single response date be set for the filings of all defendants.  Opposition to a pro hac application is highly unusual, as such motions are generally granted out of hand in support of a general policy of allowing litigants to be represented by counsel of their choice.  Joseph Rakofsky's opposition memorandum―which he appears to have authored himself―urges that Mr. Randazza's admission should be denied because Randazza has spoken to Rakofsky in rude and colorful terms in a single telephone conversation.

On Monday, June 20, the Group of 35 filed their reply papers, including responsive affidavits from Turkewitz and Randazza.  This likely concludes the written submissions concerning this motion, which remains before the Court for decision at this writing.

Also on Monday, it was confirmed that Joseph Rakofsky's own attorney, Richard Borzouye, has applied to the Court for permission to withdraw from further representation.  If that application is granted, Rakofsky could continue to appear on his own behalf, but there is substantial doubt whether he can represent his law firm, which is organized as a professional corporation, without himself being admitted pro hac vice for that purpose.  (Generally, corporations and similar business entities are not permitted to appear pro se/in propria persona, and must be represented by an attorney.  Joseph Rakofsky is admitted to practice law in New Jersey, but not in New York, so his appearance on behalf of the professional corporation would require the Court's permission.)  Again, there has been no ruling yet on the Borzouye motion to withdraw.

On Thursday, June 23, came word that the first of the first appearance by one of the large media related defendants, as Reuters filed a motion to dismiss.  That motion, filed by attorney Mark Weissman of Herzfeld & Rubin, includes a memorandum of law addressing in detail many of the substantive issues and defenses that will need to be resolved, to the extent the case ever proceeds beyond the pleading stage.  A good primer on New York defamation law, particularly as it relates to the right and privileges of the press.  It has been well reviewed:

Orange County, California, criminal defense lawyer Michael Doudna is named as a defendant on the basis of a blog post [no longer available online]. On Friday, June 24, his counsel (Thomas Catalano of Lester Schwab Katz & Dwyer) filed a Motion to Dismiss and for imposition of sanctions on Rakofsky.  Doudna's motion focuses on the question of personal jurisdiction, i.e., whether there is a basis on which the New York court can exercise jurisdiction over a defendant who has never entered the state.  Sanctions are sought on the ground that Rakofsky's suit is frivolous and filed in bad faith.

As Eric Turkewitz notes in his report, the most intriguing aspect of the Doudna motion is the revelation that Mr. Doudna has been sued for a blog post he did not write, post, or even personally approve.  The Doudna firm hired a marketing consultant, Kenney & Associates ("KA"), in March 2011, and KA created, and was apparently solely responsible for maintaining, a blog in Doudna's name.  Posts to the blog seem to have consisted of summaries and pointers to other sites' material on criminal law issues.  One such item that was linked and described was the ABA Journal's piece on Rakofsky, which in turn relied on the Washington Post's original reporting.  Mr. Doudna states in his supporting affidavit that he did not write, post, or even read that report at the time.  In fact, dissatisfied that the blog was not producing immediate increases in business, he terminated the relationship with KA; KA itself went out of business almost immediately thereafter.  And a month later: voila! Mr. Doudna is a defendant in the notorious case of Rakofsky v. Internet.  It's like a parable of legal services marketing, offering lessons galore for those who will learn them.

Rakofsky Online

While commentary on Rakofsky is still largely the province of legal blogs, the case continues to percolate through hidden and permeable strata of online consciousness, erupting like a sand boil where it is least expected, such as for instance on Moxie Bird―a site promising "News, Sex, Style, Technology, and Fun for Parents with Moxie!"―where staff writer Lexa―

Lexa obsesses about her hair more than you want to know. She hates tardiness, people who don't send thank you notes and pigeons.

―offered up some none too trenchant observations in a post titled "Young Lawyer Sues Internet": 

The internet mocking got to be a bit embarrassing for Rakofsky, so he did what any reasonable person would do: he filed cases of defamation against 81 different parties.   Anyone who hurt his feelings was served.   Because the way to react to public humiliation and a bruised ego is to call more attention to it.  Good plan there, bucko.

The Moxie Bird piece looks to have been triggered by last week's rather more insightful Atlantic Wire item.  

Cheering, hooting and jeering from the sidelines, Ken at Popehat declared: "Rakofsky Totally Has The Internet Just Where He Wants It Now." That post, typical of the genre, focuses largely on the perceived weaknesses of Rakofsky's own position, but Ken is not above casting a morsel of jaundiced attention toward blawger defendants as well:

5.   Lawyers Being Lawyers:  Meanwhile, lawyers continue to be lawyers.  A number of law bloggers, despite being represented by counsel in the case, have continued to blog not only about Rakofsky’s conduct (which I might begrudgingly tolerate, were I their attorney) but about the process of being represented in and refuting Rakofsky’s lawsuit.  That gives you a hint of what it’s like to represent lawyers, who are bowel-churningly awful to represent in ways similar to, but distinct from, doctors (with the exception of any doctor or lawyer clients reading this, who are awesomesauce, of course).  The phrase that best depicts what it’s like to have a lawyer as a client is “Hey, guys, watch THIS!”

Ken likely had in mind posts such as [defendant] Jamison Koehler's "Rakofsky v. The Washington Post: Being on the Other End of the Attorney-Client Relationship."  In fact, we know he had that post in mind, because he and [defendant] Scott Greenfield put in appearances in the comments to Koehler's post to say so.  

If recent history is any guide, some new and fascinating Rakofsky post will surface not long after this one is published.  I will be sure to report on it in my next installment.  The Rakofsky Weekend Update will return to Decs&Excs next week, barring the unlikely event that nothing happens in Rakofskyworld in the next seven days.

~~~

Disclosure/Disclaimer: I am a defendant in the Rakofsky case, one of the jointly defended group I refer to above as the "Group of 33 35," because of my having written this post; I commented previously on my involvement in the action here.  To the extent that I may have any non-public information concerning the case, my policy is not to share it in these update posts.

[Defendant] Mark Bennett continues to maintain and update a thorough compendium of links to Rakofsky-related posts on his blog, Defending People.  My own selection of links is purely subjective and not necessarily comprehensive.  The CMLP Threat Page is not currently monitoring or compiling online discussion about the case (as opposed to online access to filngs in the case) so, as I have been doing each week, I recommend regular consultation of the Compendio Bennetticus for the fullest range of blog responses to Rakofsky v. Internet.

Illustration: Photograph of the debris field including wrecked train cars following the Wellington Avalanche of March, 1910, via Wikimedia Commons.

Pull Up to the Bumper

With analysis worthy of a zen master, or perhaps worthy of Jedi master Yoda, a divided panel of California's Sixth District Court of Appeal has posited essentially this:

You cannot "assume the risk" of participating in a dangerous activity if you first assume that the risk is an illusion.

The particular risk under consideration?  Roll up, friends!  It is none other than the risk of injury to its riders posed by the humble bumper car.  More specifically, it is the risk of being injured when bumped in a bumper car.   

The appellate opinions [PDF] in the case of Nalwa v. Cedar Fair (June 10, 2011) run to 58 pages: a 20-page opinion from the 2-judge majority, and a 38-page dissent finding fault with every one of the majority's holdings.  Those with a genuine interest in these things are advised to Read The Whole Thing, and reflect upon it in solitude.  The relative brevity of a blog post does not permit the fine-grained analysis this opinion deserves, but the surfaces we can skim here are interesting enough.

The facts of the case are largely undisputed.  In July, 2005, Dr. Smriti Malwa took her young children to the Great America theme park in Santa Clara, California.  There, they chose to ride the "Rue le Dodge" bumper cars.  Dr. Malwa rode as passenger in a car operated by her 10-year old son.  

During the ride, [her] bumper car was hit head-on and then immediately hit from behind.  Feeling 'pushed around,' and needing to 'brace' herself, [she] put her hand on the dash and fractured her wrist.

Litigation, rather than merriment, ensued.  

In 2008, the trial court granted summary judgment in favor of the park operator, Cedar Fair, reasoning that

the doctrine of primary assumption of risk barred recovery . . . because [the] injuries arose from bumping, a risk inherent in the activity of riding bumper cars.  Further, the court stated that, 'Defendant did not have a duty to reduce risks that are inherent to bumper car riding.'

On appeal―this week, nearly six years post-accident―the majority of the three-judge panel disagreed, reversing the judgment and returning the case to the lower court for further proceedings and possible trial.  

Let's parse this through, shall we?

California's current doctrine of "primary assumption of risk" originated, and has been applied predominately, in cases involving sports injuries.  In simplest terms, when a player/participant is injured in the usual course of events, either by another player or by physical conditions inherent in the sport, no legal liability will arise.  Liability is imposed only when some act or omission of the defendant has made the sport more dangerous than it ordinarily would be.  

As the Malwa majority opinion notes, this version of "assumption of risk"―which was "reinvented" by a "more conservative" California Supreme Court in the 1992 case of Knight v. Jewett―is of far more restricted application than was the traditional, common law version of the doctrine―which "[t]he pre-1986 liberal California Supreme Court had narrowed . . . to the 'point of virtual extinction.'"

As against Dr. Malwa, Cedar Fair argued that it had done nothing to make bumper car bumping any more risky than expected, and that the "primary assumption of risk" doctrine should be construed to apply beyond the context of sports.  In short, Cedar Fair suggested a re-broadening of the doctrine so that injury resulting from the recognized risk inherent in most any inherently-risky activity should not give rise to liability for damages.  

While the dissenting justice was prepared to move the law in that direction, the majority was having none of it.  In large part the majority was convinced that doctrines appropriate to a sporting competion are not relevant to amusement parks specifically because amusement parks are elaborately regulated enterprises.  In particular, although there is no suggestion that Cedar Fair's bumper cars were out of compliance with any applicable regulation, the fact of regulation in itself makes "primary assumption of the risk" in applicable. 

Amusement parks, the majority opines, are not offering actual risk to their patrons.  They are offering a mere simulacrum: the experience of quasi-risk in the absence of the real thing.  

The very reason we go on amusement park rides is because we 'seek the illusion of danger while being assured of [a ride‘s] actual safety.  The rider expects to be surprised and perhaps even frightened, but not hurt.'

This line of reasoning springs to life in a remarkable discussion in a footnote early in the opinion, which serves to advance the majority's argument while demonstrating as well that "they just don't write 'em like they used to": 

[Cedar Fair] relies on several out of state authorities which purportedly barred recovery against amusement parks because injuries sustained as a result of risks inherent in the ride.   [Cedar Fair] fails to explain how these cases are persuasive or even relevant under a post-Knight analysis.   We do note that the most auspicious Judge Cardozo, in Murphy v. Steeplechase Amusement Co. (N.Y. 1929) . . . , a case where the plaintiff broke a kneecap on an amusement park ride called the flopper, held that 'Volenti non fit injuria. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary . . . .' Judge Cardozo suggested that 'The antics of the clown are not the paces of the cloistered cleric.   The rough and boisterous joke, the horseplay of the crowd, evokes its own guffaws, but they are not the pleasures of tranquility.   The plaintiff was not seeking a retreat for meditation. . . . The timorous may stay at home.'  While we certainly wouldn‘t presume to question Judge Cardozo‘s poetic alliteration [sic], his reasoning does not apply here.   First of all, Cardozo was reviewing a case after a jury verdict, not on motion for summary judgment. Second, Cardozo‘s discussion focuses on plaintiff‘s knowing acceptance of the risk, not on the absence of duty, as the doctrine is now crafted in California.  Finally, we cannot know, as the case does not reveal, what, if any, regulations New York had at the time regarding amusement park rides.   Judge Cardozo‘s opinion makes no mention of any such protective legislation or regulations.  Respondent‘s cases can be similarly distinguished.   Our playing field is quite different.   While amusement parks in 21st century California are still not retreats for meditation for the timid, riders here and now do get assurances of safety from a stringent regulatory scheme. 

Pause, and reflect on the unspoken pseudo-syllogism here.

• Amusement parks are regulated in the interest of safety, and customers believe therefore that they are safe.
• This amusement park did not violate any applicable provision of the "stringent regulatory scheme," and the fact that the risk of injury is modest but not zero was readily apparent to a reasonable adult.
• The modest risk of injury must therefore be borne by the amusement park, not by the customer who had the option to seek entertainment elsewhere.

It is not hard to tell by the tone of this post that I consider this case wrongly decided: the former, broader version of the defense of "assumption of the risk" is past due for resurrection in California, and this seems as good a case as any in which to do it.  Perhaps especially in a "stringently regulated" industry, the reality that Life is Risk (within reasonable limits) should not be denied.  The unfortunate can befall any of us any day, through no fault of any one else, and fault is the only reasonable basis for a schema of injury compensation. The facing of these facts would be refreshing.  Perhaps this is the case that will provide the California Supreme Court opportunity to revisit these issues and assumptions?   

~~~

Related: Walter Olson at Overlawyered is the latest to report that Butlin's, the UK operator of holiday resorts, has resorted to banning bumping on its bumper cars to counter potential liabilities.  The ban is particularly ironic given that company founder Sir Billy Butlin was the first to introduce the bumper car to England.

~~~

Photo: "View of the dodgems as a dodgem cars streak past.  Cambridge Midsummer Fair 2005." Andrew Dunn, photographer; used under Creative Commons license, via Wikimedia Commons.

Weekend Update: Rakofsky v. Internet Week 5

This is the fourth in the serially continuous and seriously continuing series of posts compiling the most recent publicly available developments surrounding the litigation Commonly Known As Rakofsky v. Internet, in which New Jersey attorney Joseph Rakofsky has sued divers media organizations, professional institutions and, above all, individual legal bloggers, claiming that he was damaged by those defendants' publication of reports and commentary on his performance as defense counsel in a murder trial in Washington, D.C., and issues appurtenant thereto.  All installments in this series are collected in the Rakofsky v. Internet category of this blog.

Pleadings/Court Filings

Last week, I noted the initial procedural filings on behalf of the Group of 33 defendants, principally bloggers, under the joint representation of Messrs. Marc Randazza and Eric Turkewitz.  If I am construing the information available online correctly, those applications are set for hearing on June 20.

[Update/Correction, 11 Jun 2011: I am reliably informed that I have not correctly construed procedures in the Supreme Court for the County of New York, and that the June 20 date is not in fact a date on which a hearing will be held.  The motion papers will be passed along, via the clerk, to the appropriate judicial officer, and it is up to the Court, if it so chooses, to schedule a hearing.  The Court has the option of ruling on the basis of the moving and opposition papers, without hearing oral argument.]

The major courthouse development this week, as first reported by Mr. Turkewitz, has been the filing on behalf of defendant Max Kennerly of a Motion to Dismiss [PDF] on the merits.  That motion raises many of the legal issues that can be expected to be central to the case going forward.

No other filings have been reported this week.  The large institutional defendants, such as the Washington Post and the American Bar Association have yet to appear. 

Rakofsky Online

As happens with most news, as time passes and as the Rakofsky case ages the frequency of commentary upon it also slows down.  The most notable blawg post relating to the case in recent days comes from [defendant] Carolyn Elefant on her MyShingle.com blog, who offers "Practice Tips, Courtesy of Rakofsky v. The Internet," a series of practical DO's and DON'T's gleaned from the case so far, such as:

DON’T, DON’T & DON’T ever suggest that a judge – any judge – was part of a conspiracy or “slandered” an attorney in the courtroom.  Let’s just say that those kinds of allegations aren’t going to get your complaint anywhere – except on to the trash heap with the filings by pro se prisoners and the mentally delusional.  On the other hand, if your opponent happens to make these allegations, by all means DO make note of them.  

Indubitably.

Outside of law blogging circles, the case is progressively taking on a life of its own.  Involving as it does issues of speech and liability on the Internet, it is perhaps unsurprising that "The Ongoing Case of Rakofsky vs. Internet" has generated its very own Slashdot thread.

The Rakofsky topic on Twitter, which accumulates new tweets and retweets on a continuing basis, was invaded for a time by trolls in the past few days.  Even Joseph Rakofsky, for whom there's no particular admiration on this blog, is not deserving of the sort of vile (albeit Constitutionally protected) abuse that has been heaped upon him in some of the more fetid corners of the online world.  

More constructively, a current law student remarked:

And the international, or at least multilingual, reach of interest in the case is reflected in this tweet:

The Rakofsky Weekend Update will return to Decs&Excs next week, assuming its return is warranted by developments and public demand.

~~~

Disclosure/Disclaimer: I am a defendant in the Rakofsky case, because of my having written this post; I commented previously on my involvement in the action here.  To the extent that I may have any non-public information concerning the case, my policy is not to share it in these update posts.

[Defendant] Mark Bennett continues to maintain and update a thorough compendium of links to Rakofsky-related posts on his blog, Defending People.  My own selection of links is purely subjective and not necessarily comprehensive.  As always, I recommend regular consultation of the Compendio Bennetticus for the fullest range of responses to the case.

Illustration: "Tyre besieged and captured by Alexander" (1696), via Wikimedia Commons.

Weekend Update: Rakofsky v. Internet Week 4

This week's Rakofsky v. Internet update will be comparatively brief, but it focuses on the first significant procedural development in the case:  the initial filings with the Court on behalf of 33 of the 81 currently-named defendants.  

As a practical matter, this week begins and ends with Eric Turkewitz.  

Eric was already known as a defendant in the case, and as the author of what is likely the single most-read commentary on Joseph Rakofsky's defamation action.  This past Tuesday, following the Memorial Day weekend, Eric made it known that he will no longer be merely a defendant.  He will also be local counsel in New York for a joint defense to be spearheaded by First Amendment specialist, Marc Randazza:

Two weeks ago I ripped into Joseph Rakofsky, the newbie lawyer who took on a murder defense shortly after being sworn in as an attorney, and who was written about, up, down and sideways regarding his competence, ethics and marketing.

I wrote at the end of my post, “Yeah, I got more,” and I do. I could easily put up 5-6 new posts on the subject with material others have not yet addressed. This case is, after all, right in my blog’s wheelhouse.  The combination of local access to information along with strong opinions has the potential for potent blog posts.  I’ve also defended a defamation case in the past, where my attitude was no different than here: GSIAH (Latin:  vade et caca in pilleum).

But I’ve elected not to write those posts.  And this is why.  I’m going to be local counsel for 30 of the 81 defendants.  Marc Randazza will be petitioning the court for admission pro hac vice and I’ll be the local guy on the scene while he does the heavy lifting.

Today, Eric rounded out the week by dropping the other shoe, posting copies of the initial motion filed through his office on behalf of the 33 defendants that he and Marc Randazza will represent.  In addition to the pro hac vice application Eric mentions, the motion includes a request that the Court set a single date for all defendants' responses to the Amended Complaint to be filed, so that the case can move forward on a more coordinated and efficient schedule.  

All of the materials posted on Eric's site are worth reading for those who are interested in the case, but two items are of particular note:

First, the Affidavit of Eric Turkewitz [PDF] in support of the motion.  That affidavit serves as a one-stop shop for the overall outlines of the case, a sort of Summa Rakofskologica, if you will, and a glimpse of the shapes of things to come.  If you read just one document, this is the one to read.

Second, a copy of the court reporter's transcript [PDF] of the proceedings held on April 1, 2011, in  U.S. v. Dontrell Deaner, the murder case in which Joseph Rakofsky served for a time as defense counsel.  The April 1 hearing is short—only seven pages—and concerned principally with Rakofsky's being relieved as counsel.  The transcript includes the remarks of the trial judge that Rakofsky's Amended Complaint characterizes as "statements in open court that slandered RAKOFSKY's knowledge of courtroom procedure."  (Rakofsky v. Washington Post, et al., Amended Complaint, para. 117.)  Those remarks are central to the Washington Post report that started it all.  You are now free to read and judge them for yourself.

As I have noted before, I am a defendant in the Rakofsky case, because of my having written this post; I commented on my involvement in the action here.  As the materials posted by Eric confirm, I am also part of the Group of 33 defendants that he and Marc Randazza will represent.  I am proud to stand with that Band of Blawgers as a co-defendant, and to have teh benefit of such able defenders.  

To the extent that I may have any non-public information concerning the case, I have generally not been sharing it in these update posts.  At this point, I make a minor exception to that policy.

Marc Randazza has authorized his clients in this matter to quote him as saying:

"murum aries attigit"

~~~

Illustration: Attack on the walls of a beseiged town, from Charles Knight's "Old England: A Pictorial Museum" (1845), via Wikimedia Commons.

Weekend Update: Rakofsky v. Internet Week 3 [Updated]

Another week yields another round of online commentary on Rakofsky v. Washington Post, et al., better known as Rakofsky v. Internet.  My initial "Rakofsky week in review" post was sufficiently well received that another edition seems in order.  

~~~

Pleadings/Court Filings

No new filings have come to this blog's attention since last week's report.  New York practice typically calls for responses to be filed within 21 days of service of the Summons, although that deadline is subject to extension by agreement. At this writing, the operative pleading remains the Amended Complaint. There have been no public indications of the state of service of that pleading within or without the State of New York.

~~~

Rakofsky Online

I noted last week that some bloggers who are either named in or closely following the Rakofsky case were of a mind that Right-Thinking People should have a sense of Obligation compelling them to acknowledge and comment upon it.  That sub-theme was the trigger for several posts, and those posts provide as good a starting point as any for this week's compilation:

[Non-defendant] criminal defense attorney Rick Horowitz began his post, "Railing Against Rakofsky," with a statement of his reasons for taking up the subject:

I’ve never been a fan of the draft.  I’m a big fan of friends, though.  And apparently some of my friends are calling me out for not having blogged about the latest poster-child for…what?  I don’t know what I really think Rakofsky is a poster-child for.

Nevertheless, I submit to the draft, if for no other reason than to assure my friends that I do, actually, stand with them on Rakofsky.

Public defender [and non-defendant] Daniel Partain asked rhetorically "Why have not more lawyer bloggers commented on the Rakosfy debacle?" and tried to answer.

What in some circles proved the most controversial Rakofsky post of the week came from [non-defendant] Dan Hull of What About Clients?/What About Paris?, who argued in his post—"Rakofsky Bad. Defendant Lawyers, 4th Estate & 1st Amendment Good"—his opinion that there is something unnecessary or excessive in the negative attention being leveled at plaintiff Joseph Rakofsky and his suit, neither of which may be worthy of the aggravation or the effort. Speaking as a litigator, he also articulated his practical, tactical discomfort at the prospect of litigants providing running commentary on a case in which they are actively embroiled:

Once you're served, you don't tell everyone you meet about it. Talking, writing and venting post-suit hits already-raw nerves, fans fires, generates unneeded 'evidence', . . . and stretches out proceedings and pretrial by-play by months and even years.

Needless to say many blawgers, including particularly a number of the defendants, were not persuaded to Mr. Hull's point of view.

A long post at [non-defendant] Popehat disdained the Rakofsky suit for its futility, among other things: "Maybe 'I Sue The Internet!' Is This Generation’s 'I Attack The Darkness!'"  On Twitter, Popehat also opined on a potential procedural issue in the case:

Additional procedural crystal ball gazing was provided by [non-defendant] Mark Zamora on his blog, A Georgia Lawyer.

From across the Atlantic on the Anna Raccoon blog, [non-defendant] Matt Wardman remarks:

This has happened before on the Net, and is the internet equivalent of erecting a large sign pointing at yourself labelled 'whompa', rather than the more logical action of stopping digging and hiding in the bottom of the hole you just created.

[Defendant] Josh King weighed in on the Avvo Blog with a bit of "how did we get here" analysis, asking whether the problem lies in a lack of mentoring or a lack of awareness.

Non-lawyers also began offering their perspective on the case this week.  First, on The Fraud Files Blog, forensic accountant/fraud examiner Tracy Coenen drew conclusions reflected in the title of her post: "Rakofsky suing the internet: Career suicide."

On Friday, powerhouse IT site Techdirt provided its readers with a summary: "Recent Law School Grad Gets Berated By Judge, Then Sues Nearly Everyone Who Discussed The Case." Although Techdirt declares that "[t]his one seems like it will be fun to follow," the post re-fired the question whether the case is worht following or attending to at all:

Closing out this week's survey, the latest from one who is following the case as aggressively as anyone.  On his My Law License blog, [defendant] Brian Tannebaum turned his attention from the merits of the action to parsing the online presence of Joseph Rakofsky's legal representative, inviting his readers to Meet Richard Borzouye . . . Joseph Rakofsky's Lawyer.

Mr. T's post drew this link and comment from [non-defendant] Kevin O'Keefe on Twitter:

C'mon, Kevin: those scare quotes are just mean.

The Rakofsky Weekend Update will return to Decs&Excs next week, if warranted by developments, public demand, and the blogger's inclinations.

~~~

Update [0840 PDT]: Just in time to have missed the deadline for the original version of this post, [defendant] Scott "Simple" Greenfield, as alway on the lookout for the Teachable Moment, finds it:

Few matters offer more lessons than this one.  It offers lessons about competence.  Lessons about marketing.  Lessons about responsibility, honesty, integrity.  About greed.  It offers lessons about hole-digging and making a bad situation worse.  For young lawyers, particularly the Slackoisie, this is a case study that should be taught in every law school in the country.  Any lawprof teaching professional responsibility who neglects the Rakofsky Effect has not fulfilled his duty.

~~~

Disclosure/Disclaimer: I am a defendant in the Rakofsky case, because of my having written this post; I commented on my involvement in the action here.  To the extent that I may have any non-public information concerning the case, I will not be sharing it in these update posts.

[Defendant] Mark Bennett has been updating regularly the compendium of links to Rakofsky-related posts on his blog, Defending People.    My own selection of links is purely subjective and not necessarily comprehensive. I recommend regular consultation of the Compendio Bennetticus for the fullest range of responses to the case.

~~~

Illustration: The calling card that served as trigger for Oscar Wilde's wildly unsuccessful libel action against the Marquis of Queensberry, via Wikimedia Commons.  "The letter A in the bottom left corner was added at the time of the trial to indicate that it was exhibit A."

Weekend Update: Rakofsky v. Internet Week 2

For the benefit of those not already following it obsessively, this post will compile the most recent publicly available developments relating to the Rakofsky litigation, in which Joseph Rakofsky is suing an array of media organizations, professional organizations and, above all, individual legal bloggers, claiming that he has been damaged by their publication of reporting and commentary on a murder trial in Washington, D.C., in which Mr. Rakofsky served for a time as defense counsel.  This may be the first in a series of roughly weekly updates, or it may be a one-off.  If new developments and public interest warrant it, I will compile and post on the case in the future.  If not, then not.

I am a defendant in the Rakofsky case, because of my having written this post; I commented on my involvement in the action here.  To the extent that I may have any non-public information concerning the case, I will not be sharing it.

Here, then, are the highlights of Rakofsky, Week 2.

~~~

Pleadings/Court Filings

The Complaint in the case of Joseph Rakofsky, et. al. v. The Washington Post Company, et al., New York Supreme Court*, County of New York Case
No. 10557-2011, was filed on May 11, 2011.  That complaint named 74 defendants and stated two theories of recovery: defamation [libel] and violation of New York's Civil Rights law.  A copy of the Complaint has been uploaded by [defendant] Mark Bennett, here.

On May 13, the lawsuit's existence was announced to the world by [defendant] Scott Greenfield on his Simple Justice blog in a post that gave to it the name by which it is now universally known: Rakofsky v. Internet.

This past Monday, May 16, Joseph Rakofsky and his attorney filed an Amended Complaint.  That new pleading increases the number of defendants from 74 to 81, largely by adding parties who wrote or blogged about the Rakofsky v. Internet action itself in the first few days after it was filed.  The Amended Complaint also expands the plaintiff's legal theories.  In addition to the original defamation and civil rights claims, the Amended Complaint adds counts alleging "Intentional Infliction of Emotional Distress" and "Intentional Interference with Contract."  A copy of the Amended Complaint is being hosted by [non-defendant, so far] Keith Lee at An Associate's Mind.

Because the case is still so new, there have been no filings with the Court apart from the first and second versions of the Complaint.  The particular defendants who have been served with the complaint, or on whom Rakofsky may claim he has accomplished service, is not yet a matter of record.

~~~

Rakofsky Online

[Defendant] Mark Bennett is maintaining an ongoing compendium of links to Rakofsky-related posts on his blog, Defending People.  My own selection of links below is purely subjective and not comprehensive.  I strongly recommend prowling through the Compendio Bennetticus for the full range of responses.

On his New York Personal Injury Law Blog, [defendant] Eric Turkewitz issued what is possibly the most-read Rakofsky retort so far: "Joseph Rakofsky — I Have An Answer For You".  Eric's answer is not for the eyes or ears of the easily offended, even when it is translated in to Latin.  That post also lofted the Rakofsky case to broader Internet notoriety when it was reported (with Eric's surname misspelled as "Tukewitz") by Cory Doctorow at boingboing.

The anonymous law student blogger [and defendant] known as J-Dog reported on his attempt at a negotiated resolution.  The post includes an excerpt of an email from Joseph Rakofsky himself, who suggests that J-Dog (and presumably all of the other defendants) should have invested in a copy of the reporter's transcript from his D.C. murder trial "before you presumed to harm me."

Brian Cuban [not a defendant, yet] is unimpressed by the Emotional Distress theory, particularly in light of the U.S. Supreme Court's recent pronouncements on the subject.

David A. Shulman [not a defendant at this time] took to his South Florida Estate Planning Law blog to declare himself as Standing With My Fellow Legal Bloggers Against an Attempt to Chill Speech.

The legal humor blog Big Legal Brain and [non-defendant at this stage] C. Hank Peters revealed that Rakofsky v. Internet will be coming soon to a theater near you:

[Defendant] Antonin Pribetic made, at length, the case for Rakofsky as a sign of the End Times: REPENT, FOR THE END IS NIGH! THE RAKOFSKYLYPSE IS UPON YE!

Much of what is being said about Rakofsky is being said in 140-character snippets on Twitter.  Those items can be found by a Twitter search for Rakofsky or for the hashtag #Rakofsky.  Two comments here from defendants freshly added to the Amended Complaint:

And two more original defendants' remarks on a notable absence of comment on the case from certain quarters:

A last note on legal representation: Joseph Rakofsky is represented as plaintiff by attorney Richard Borzouye, discussed in this post by [defendant] Mark Bennett.  Mr. Borzouye's own website, here, includes a description of his practice that begins with this:

Just two blocks from Grounds Zero, Borzouye Law Firm, P.C. is a full-service Wall Street litigation firm, with an elite New York State & Federal criminal practice . . . .

Emphasis added.  Spelling in original.  Good taste is timeless.

The Rakofsky Weekend Update will return to Decs&Excs next week, if warranted by developments and public demand.

~~~

*    Although the "Supreme Court" in federal practice and in most states is an appellate court at the highest level of the judiciary, in the State of New York the Supreme Court is the ground level trial court.

Illustration:  "Candid Considerations on Libels" (1789) via Wikimedia Commons.

From the Complaints Desk [For Those About to Rakofsky (We Salute You)]

Oscar Fingal O'Flahertie Wills Wilde,
Patron Saint of Ill-Advised Suits in Defamation

~~~

Lawyers, even the best of lawyers, are only human, no matter what they say. Lawyers, even the most experienced of lawyers, but particularly younger and less experienced lawyers, can and do make mistakes.  When mistakes are made, in the law or in any other human activity, it is always to be hoped that the one making the mistake will (1) do whatever can be done to minimize or correct its ill effects on others, and (2) learn something from the mistake while moving on from it.  

The "moving on" part is important.  At least when they don't lead to your conviction of a crime, nearly all but the most notorious, blazing errors can in time be left behind if only you let time do its work.  And, like a scabbed-over wound, most errors will heal themselves more quickly if you will Just Leave It Alone.

In early April of this year, a young attorney made what looks to have been a mistake: as reported in the Washington Post and elsewhere, New Jersey attorney Joseph Rakofsky, less than a year out of law school, took on the defense of a murder trial in the District of Columbia.  Per the original Post report, he "exhibited what the judge said were numerous signs that he lacked knowledge of proper trial procedure, including telling the jury during his opening statements that he had never tried a case before."  The Court directed a mistrial.  Rakofsky, for whatever reason, seemed to boast about the outcome on his Facebook page.  Inquiring minds in the legal blogosphere began to inquire, and soon "Joseph Rakofsky" had become a teachable phenomenon, an occasion for fellow professionals to derive what lessons they could about the state of the profession and the Do's and Don'ts of practice, procedure, ethics, marketing, and so on, and to share those lessons with their readers.  On April 10, I wrote a bit about it here.

Joseph Rakofsky was a several days' wonder, but that was six weeks ago. Today, even most of those who had read the various original reports and posts would probably not be sparing him a thought.  But Joseph Rakofsky will not Leave It Alone.  Instead, Joseph Rakofsky has done the thing that we teach people to do in this country when they just won't Leave It Alone. 

Joseph Rakofsky has filed a lawsuit, in the courts of the State of New York, seeking damages and injunctive relief based upon defamation and invasion of his civil rights.

He has filed a lawsuit against the Washington Post.  

He has filed a lawsuit against other print media and reporters who covered the story.  

Most notably, he has filed a lawsuit against nearly every legal blogger who wrote about or commented on the story, casting about so broadly that Scott Greenfield, one of the first of the blogging defendants to be served, promptly nicknamed the case Rakofsky v. Internet.

And yes, I am among those named as defendants–we were dubbed almost immediately the Rakofsky 74–and I am specifically referenced in paragraphs 56, 57, 173, 174 and 188(w).  At this writing I have not received service of a summons or other process, and perhaps I never will.  Scott Greenfield, a New York practitioner himself, has pointed out that New York's "long-arm statute" contains an explicit defamation exception that should make it difficult or impossible for the court to obtain personal jurisdiction over non-New York defendants.  (More on that interesting subject from my respected Canadian co-defendant, Antonin Pribetic, here.)  

Prudence dictates against any extensive comment on the merits of this case at this time.  Others are having their say, at length and with vigor, and a quick search for "Rakofsky" will surely lead interested readers to the highlights and low lights of that discussion, which they may judge for themselves.  I will say that, upon review, I have no qualms about the propriety of what I wrote originally.  Such lessons as I drew from the case of Mr. Rakofsky were and are there to be drawn.

As is the lesson with which I started this post: Oscar Wilde found that the road from perceived defamation to litigation led instead to incarceration, and with surpassing swiftness.  There is no reason to believe that any fate quite so dire awaits Mr. Rakofsky, but there is also little reason to believe that he has done himself any long-term favors by electing to file suit.  Already, in the fewer than 48 hours since his suit came to light, he has resumed his place as a source of merriment and a target of scorn across the Internet.  There may be someone out there writing in his support, but I have not seen any sign of it thus far.  I'm no clairvoyant, but I have to believe that at some point in his future a chastened Mr. Rakofsky will look back with regret on the course he has chosen this week, and wonder why he didn't or couldn't Just Leave It Alone.

Practiced in the Art of Deception

Ko-Ko. Well, a nice mess you've got us into, with your nodding head and the deference due to a man of pedigree!

Pooh-Bah. Merely corroborative detail, intended to give artistic verisimilitude to an otherwise bald and unconvincing narrative.

        — W.S. Gilbert, The Mikado

~~~

Unknown scam artists, possibly Canadian or possibly Australian or possibly neither, have apparently "borrowed" the likenesses of several UK solicitors without permission in order to implement an email fraud scheme targeting attorneys.

Earlier today, Toronto Trial Warrior Antonin Pribetic re-tweeted a link to this post: Law Society of British Columbia Warning Re Real Estate Fraud Involving Fake Law Firm Wagner Elliot LLP.  The story describes a con in which attorneys are persuaded to accept phony checks for deposit in their client trust accounts, then tricked into disgorging the "funds" before they discover that the funds do not in fact exist.  

The success of the scheme depends in part on the lawyer-victim's belief that he/she has been contacted by a fellow practitioner, an attorney with the Toronto law offices of "Wagner Elliot LLP."  That firm does not in fact exist. It does, however, have a nice looking website.  

• As we will see below, "Wagner Elliot" is not real, but the contents of its website are derived directly—plagiarized, really—from the actual site of an actual law firm.  For better or worse, the fake site's air of verisimilitude is enhanced by its being liberally sprinkled with the sort of empty rhetoric beloved of law firm websites the world over: Wagner Elliot is "committed to providing commercial legal advice of the highest quality at a sensible cost," and promises service that is "personal, proactive and practical." Just like everybody else.
  
  
• The lovely building shown atop this post also appears on the Wagner Elliot LLP homepage, implicitly as a depiction of the firm's headquarters.  The file name is "Building1.jpg".  No such building is located at the Toronto address given by the faux firm.  Research by Mr. Pribetic suggests that the address given on the site is actually that of either a housing project or a gas station.  (The use on lawyer websites of photos of attractive buildings not otherwise connected to the lawyers in question was recently the subject of deserved scorn from Miami practitioner Brian Tannebaum.)

Intrigued, I undertook a bit of research of my own.  A WHOIS search revealed that the "wagnerelliot.com" domain was first registered less than a month ago, by unknown Australian interests giving their address as a "Locked Bag" in Melbourne.  The score so far: not real lawyers, and not even real Canadians.

Antonin Pribetic's inquiries went further, turning up what he initially described as "a UK mirror site," for Alan Lowe & Co., a firm of UK solicitors. If you compare the Lowe site (here) with the Wagner Elliot site (here) you will find them to be nearly identical, right down to the homepage appearance of "Building1.jpg".

Still intrigued, curious how such parallel sites might be explained, and curious how if at all these firms might be related, I decided to search for other uses of the phrase "providing commercial legal advice of the highest quality at a sensible cost."  That search led to a third site: that of another firm of solicitors, Davis & Co., located at the same address as Alan Lowe & Co.

I must confess that I initially leapt to the conclusion that all three of these firms are fictitious.  Some further inquiry, however, quickly led me to a different conclusion: The fake firm of Wagner Elliot LLP has stolen its identity wholesale from the real firms of Mr. Davis and Mr. Lowe, without those gentlemen's knowledge or consent.  So complete is the theft of those gentlemen's identities that their photographs have been incorporated in to the phony Wagner Elliot site, under false names.

• Here you can view a photograph of the real Alan Lowe, solicitor. Here you can view the same photograph, now identified as that of the entirely fictional "Wagner Elliot."  Mr. "Elliot" has even been given Mr. Lowe's biography.  A slightly different photo of Mr. Lowe, as himself, appears on the Davis & Co. site.
  
  
• Davis & Co. is the firm of solicitor Mark Davis, whose photograph in his own right at his own firm can be seen here.  That same photo appears on the site of the Lowe firm (scroll down), as these two solicitors maintain a consulting relationship with one another.  That same photo also appears, as you have no doubt guessed, on the "Wagner Elliot" site, where it is now identified as that of "Marcus" Davis.  This Marcus fellow is credited, falsely, as "the author of ‘Bareboat Charters' published by Lloyd's of Canada Press."  The genuine article, Mr. Mark Davis, is in fact the author of that treatise, now in its 2nd edition and published by Lloyds of London.
  
  
• Solicitor Andy Coyle, who also consults with Mr. Lowe and who practices as well with the offices of Lennon & Co., is also purloined by "Wagner Elliot."  He is given his own name on the faux site, although his school has been changed from the University of Liverpool to the University of Toronto.

Are there lessons to be derived from this sordid little affair?  Of course. Among them, I would include these:

• "Prospective clients" who approach via unsolicited email should be viewed with suspicion, and dealt with very carefully or not at all.
  
  
• The artistic verisimilitude lent by a pretty website should be viewed with suspicion, and dealt with very carefully or not at all.  In fact, no matter what the marketing mavens would like you to believe, the credibility value of any law firm website, no matter how qualified the attorneys behind it may be in real life, is statistically equivalent to zero.  Direct contact, with real people, and with real and objective confirmation of skills and experience, is ultimately the only reliable measure of such things.  Everything else is just shiny trinketry, distracting at best and, as here, actively deceptive at worst.
  
  
• Watch your back in the Internet-connected world.  This case demonstrates not only how easy it is to create a persuasive set of false appearances online, but also how easily You Yourself may be purloined. The wholesale repurposing of Mr. Lowe's website into the fake "Wagner Elliot" site means that the parallels between them are readily discoverable by a simple Google search.  But who would think to make that search on a regular basis?  The risk that your identity, and your professional and personal integrity, will be misrepresented online is real and ever-present, and troublingly difficult to catch or prevent.

So there we have it: an email confidence game, carried out by persons unknown, is sufficiently profitable that it warrants the investment required to create—to plagiarize, really—the appearance of legitimacy that a website is presumed to supply.  The scandal of the thing is compounded by the brazen misappropriation of the names, likenesses, and reputations of at least three real practitioners.  I would hope that no actual damage has been done to those gentlemen, who must be counted among the victims of this scheme.  I would hope as well that the actual wrongdoers can be identified and brought to heel, although I confess my expectation is that they have already moved merrily on to their next unsuspecting targets.

The Curious Case of the King of the Bush and the Working Men

Here is a jolly little tune well known to those of a certain age who consumed mass quantities of radio or of MTV or of VH1 in and around 1983.   Yes, it's the song that introduced the United States to the arcane substance known as Vegemite, Men at Work's "Down Under":

Now, having grown up in a household with two generations of Girls Scouts living in it, I noted on my first or second listen to the song almost thirty years ago that its distinctive flute part includes a dozen or so notes that quote directly from another song, "Kookaburra (Sits in the Old Gum Tree)".  "Kookaburra" is the Second Most Australian Song on Earth, surpassed only by "Waltzing Matilda," so the inclusion of a reference to it in "Down Under" -- a song that is itself all about Things Australian, about how the world perceives Things Australian and how Australians perceive and present themselves -- makes perfect sense.

To refresh the recollection of anyone who hasn't heard it for a while, here is a performance of "Kookaburra."  This version is slightly unusual in that it is sung as a solo: the song is more commonly sung as a round, by groups of Girl Scouts or schoolchildren or similar nice young persons.  The portion of the melody that recurs in "Down Under" comes just prior to the first round of applause in this video:

The incorporation of the "Kookaburra" tune into "Down Under" was always so obvious and so thematically appropriate that it never occurred to me to think that the Kookaburra bits didn't belong.  If I had thought about it -- which I confess I never did -- I would have assumed either that the Kookaburra song is an anonymous, traditional piece from the public domain, or that the snippet used by Men at Work was so brief as to constitute a permissible "fair use", or that the band had obtained permission before using it.  And I would have been wrong.

It turns out that "Kookaburra" was only written in 1935, that it has a perfectly identifiable author (Marion Sinclair, a teacher who wrote it for a troop of Girl Guides [Aussie Girl Scouts]), that it remains protected by copyright and that its copyright is now held by a publishing company, Larrikin Music.  Larrikin brought suit against songwriters Colin Hay and Ron Strykert of Men at Work and against the band's record companies for copyright infringement, after the connection between the two songs was pointed out in a question on a television quiz show. This past week, Larrikin prevailed:

'I have come to the view that the flute riff in ''Down Under'' ... infringes on the copyright of Kookaburra because it replicates in material form a substantial part of Ms. Sinclair's 1935 work,' [Australian] Federal Court Justice Peter Jacobson said. 

He ordered the parties back in court Feb. 25 to discuss the compensation Larrikin should receive from songwriters Colin Hay and Ron Strykert and Men at Work's record companies Sony BMG Music Entertainment and EMI Songs Australia. 

Adam Simpson, Larrikin Music's lawyer, said outside court the company might seek up to 60 percent of the royalties ''Down Under'' earned since its release -- an amount that could total millions.

The ruling seems an odd one given that the quote from Kookaburra is at the same time obvious and trivial.  If the case were tried under U.S. copyright law, I would have to give good odds on the success of a defense based on Fair Use.  (See, e.g., the 2 Live Crew case, Campbell v. Acuff-Rose Music.)  

Hay and Strykert have never claimed that piece of the song as their own original work, and this is not a case of "subconscious" plagiarism as famously occurred in the case of George Harrison's reinvention of The Chiffons' "She's So Fine" as "My Sweet Lord."  In fact, it seems Hay and Strykert didn't even include the Kookaburra bit in their song as written. The offending notes were inserted while the song was being recorded, by flute player Greg Ham, much as a jazz player might include a reference to Song B while soloing on Song A.  From an Australian television report:

Colin Hay, the lead singer of Men at Work says he's very disappointed by the result. 

COLIN HAY: It has some pretty serious, you know, possibly some pretty serious financial repercussions. 

SARAH DINGLE: He doesn't deny that the flautist Greg Ham used two bars of 'Kookaburra', but he says that addition came after the original song was composed. 

COLIN HAY: When it was written, there was no band, there was no Men at Work, and so there was no flute in the band at all, and so when you talk about Down Under that's what Down Under is to me.  I'll go to my grave knowing Down Under is an original piece of work, when I wrote that with Ron, we took nothing from anybody and it was one of those, it was an accident that, it was a musical accident that happened.

No actual kookaburras could be reached for comment, as they were too busy engaging in howls of derisive laughter at these litigious humans.

~~~

Cross-posted from a fool in the forest.