Opening A Look At The Top Legal Stories Of 2010… So Far
BY PHILIP BOESCH
A Word To Begin. Hollywoodnews.com, like Los Angeles, like Hollywood, has lawyers. We exist; we write every day. Turning someone’s mess of a deal memo into an integrated enforceable contract may be a creative intellectual exercise…but often lost in clauses no one will read is the beauty of the written word. Trial lawyers get used to writing for an audience only of one, maybe two if the Judge actually has the time and inclination to read what’s in his clerk’s inbox. Presenting the most persuasive points in the most eloquent manner, for the skimming pleasure of a single busy law clerk, may be important and necessary for a client in need… but often as unsatisfying as a story with no one to tell it to.
To this reader, writing needs reading. So as the energetic founders and journalists of hollywoodnews.com work overtime to attract eyeballs to new pages in a crowded marketplace, this lawyer appreciates the opportunity.
Closing On Yesterday’s News. From every corner of the world, opinions have appeared on Tiger Woods, on sponsors dumping Tiger, on NBC cancelling Jay Leno or being dumped by Conan. Popular stars boil down the contract boilerplate to a joke line. News anchors with 20 seconds to spare simplify complex contract clauses into rumors and thimble-sized doses of common sense. But these guys, Tiger, Conan, Jay, aren’t average Joe’s getting laid off. These are big people with big stages unique unto themselves, well represented they have been, on all sides since day one. Their legal rights are being debated right now in closed-door sessions of litigators pouring over the escape clauses bargained into the contracts. Their termination and cancellation provisions, and their rights and remedies, are expressed in the small print right alongside the large dollar signs. We can be interested in the jockeying and exposure of heroes, but in the legal issues not so much.
Today It’s The Bicoastal Two-Step. So what are today’s real top stories in the world of media and entertainment law? At this moment the most important legal stories are playing out on a bicoastal stage, one in California and one in New York. While that may seem fitting, with so many entertainment types and reps still promoting a bicoastal presence, bicoastal is dead or dying in common sense business. The no-coastal internet, where you never know from where the keystrokes come or the video streams, is of course the reality to deal with. You don’t need overwhelming social networks, or Ellen Page and her cute Cisco conferencing commercials, to convince us that yet another generation of electronics will eliminate this bicoastal business altogether, or already has.
The Elite Argue In New York. In a Manhattan courthouse, Google and Viacom have squared off for three years, corporate media giants fighting over YouTube. Viacom has the money to scream for many more years about the 62,000 plus and counting copyrighted video streams that are posted on YouTube and passed along by Google. Didn’t that nastiness with music file sharing and Napster eventually get resolved? Alas, Google isn’t Napster and is no pushover. Google makes the rules. How millions of folks do their YouTube business and shoot video clips around the internet is at stake here. No more says Viacom. One thing already is clear. In taking years to process important claims, the law and the courts will fall hopelessly behind technology advances. Judicial decisions will weigh in far too late to control the continuing struggle between the quest for free content, and the need to pay people for their creative work. In Court papers filed this week, Google and Viacom each claim that the case should be decided as a matter of law in its favor. Both have a hard time pretending to represent the common folk.
The Common Folk Say California Here We Come. In federal court in San Francisco, two gay couples are appearing in trial as the common folk, up front and center in the courtroom, as the same sex marriage trial begins. Declaring the Prop 8 ban on same sex marriage to violate the Constitution’s equal protection clause, the couples’ lawyer Ted Olson, the former Republican Solicitor General, said: “There is a fundamental Constitutional right to marry.”
So where do you find in the Constitution this fundamental Constitutional right to marry? Answer: You don’t.
Instead we find Kris Perry and Sandy Stier from Berkeley, a personable couple of two proud moms with four boys age 15 to 21, and Paul Katami and Jeff Zarrillo, a good looking, polished nine-year committed couple from the San Fernando Valley, who show up to court for photo-ops with their family values and longstanding loving relationships on display. They have been interviewed and vetted, lined up and scrutinized as the select plaintiffs, as the test cases representing the world of many couples. The right they seek seems fundamental and Constitutional enough for them and their loved ones. Don’t get me wrong. I agree with Kris and Sandy, Paul and Jeff, with the gay community and most of Hollywood. These people should be married if they want. And the equal protection clause should be interpreted, even if it never has been before, to protect this expression of fundamental rights.
As these four people step forward requesting a court ruling that may affect so many thousands, millions, of men, women and children, you have to wonder. Where did they and this case come from? Remember the Supreme Court’s 5-4 decision in Gore v. Bush that decided a Presidential election based on the flimsy slanted evidence out of Florida? The lawyers on opposite sides in Gore v. Bush now together and setting up for the gay couples? Both on the same side?
Ted Olson the conservative has been asked how and why he comes to court in support of this Constitutional argument for gay marriage, and his thoughtful answers seem to dodge one real conservative beef with his argument. Conservative commentators attack continuously the notion that judges should write into Constitutional law rights that the Founding Fathers in their wisdom did not include. And now one of their distinguished own argues for a fundamental right to marry, words and precise expressions nowhere to be found in our Constitution.
As Vanity Fair reported, at the beginning of Perry v. Schwarzenegger, the odd pairing of the Bush and Gore lawyers had skeptics questioning whether “Olson was deliberately setting up the gay marriage movement for a fall.” That isn’t happening, but we’ll watch, wait and see.
Tomorrow’s Top Legal Story. So the Chinese government’s spies hack into the email of dissidents and troll for corporate secrets. They steal. Google makes the rules in China too and Google tells them “no thanks.” When Google stands up to the Chinese government and their hackers, who’s bigger? China or Google? We will see. And we will see the real legal story unfold here as the communist variation on the YouTube case in New York. Cyberspace to the people! When you have 300 million Chinese internet users who see piracy through an amoral lens as a way of life, how can you control what you can’t understand? You leave it to Google.
About: Phil Boesch is a Los Angeles Attorney with more than 30 years experience in Business Litigation and Personal Litigation. The Boesch Law Group also provides entertainment & Communication legal services.