Posts by Rachel Wilkes Barchie

Rachel Wilkes' litigation practice covers a wide range of employment, intellectual property, and general business matters, including representing employers against wrongful termination and discrimination claims, and prosecuting and defending cases for copyright and trademark infringement; breach of contract; fraud; and business torts. Ms. Wilkes also handles a variety of real estate litigation matters and has successfully prosecuted cases involving claims for commercial unlawful detainer, construction defect, fraudulent conveyance and breach of lease.



Cameras in the Courtroom: Access to Justice or Media Circus?

Our loyal Law Law Land readers already know about the intrigue that surrounds so-called court “reality” shows like Judge Judy and The People’s Court. (For those who missed it, I broke the shocking news that — brace yourselves, people — those “courts” aren’t really courts at all.) So where can avid followers turn for a glimpse of real-life justice? In many cases, the public’s view of the inside of a court trial is limited to the lifelike renderings of the courtroom’s sketch artist. But occasionally, a judge decides to allow a video camera into the courtroom and we can watch the proceedings for ourselves.

Last month, Los Angeles Superior Court Judge Michael Pastor ruled that a television camera will be allowed in the courtroom for the involuntary manslaughter trial of Michael Jackson’s former doctor, Conrad Murray, for which jury selection began last week. Judge Pastor asked for the “absolute least-intrusive placement” of the camera and prohibited cameras from being present at jury selection.

Judge Pastor was able to make that ruling because in state courts in California, pursuant to California Rule of Court 1.150, “Photographing, recording, and broadcasting of courtroom proceedings may be permitted as circumscribed in this rule if executed in a manner that ensures that the fairness and dignity of the proceedings are not adversely affected.” Specifically, a judge “in his or her discretion may permit, refuse, limit, or terminate media coverage.”

In making his decision, the judge must take into account a whole litany of factors, including: the importance of maintaining public trust and confidence in the judicial system; the importance of promoting public access to the judicial system; the parties’ support of or opposition to the request; privacy rights of participants; the maintenance of the orderly conduct of the proceeding; and any other factor the judge deems relevant. In sum, a state court judge has a ton of discretion, especially because he can consider “any factor [he] deems relevant.” (I, for one, would propose a few additional factors for consideration, like “how to best avoid an O.J. Simpson trial-style media circus” or, a closely related inquiry, “how to not be Judge Lance Ito.”) Continue reading the full story . . . »



How “Free” is “Free Speech?” You’re Still Fired (And/Or a Jerk)

Last year, after Big Love star Chloe Sevigny trash-talked her show’s season, calling it “awful,” we took our dear readers through the ins and outs of non-disparagement clauses in celebrity contracts, and how they can (or can’t) prevent stars from criticizing a show or movie while simultaneously making bank on it. (Along the same lines, stay tuned for our much anticipated analysis of the dispute between Charlie Sheen, CBS/Warner Bros., and showrunner Chuck Lorre. Sneak preview: we will not be able to restrain the urge to make extremely obvious and ubiquitous “tiger blood” and “Adonis DNA” references.)

But what happens when a star makes comments that are not disparaging to the star’s current project or boss, and instead are just generally perceived by certain people (or everybody) as offensive or insensitive? Surely the First Amendment must protect this kind of speech!

Not so fast, Dr. Laura. Because as we like to say around these parts, the right to free speech is not the right to consequence-free speech. Continue reading the full story . . . »



Online Impersonation Law: Cyber-Bullies Beware?

In a recent episode of CBS’ The Good Wife (which this blogger will go ahead and admit she loves, particularly for its disciplined realism — because obviously, all fresh-out-of-law-school first year associates get to try murder cases by themselves), Zachary Florrick (the teenage son of the title character) was pressured by ne’er-do-well vixen Becca into setting up a fake Facebook page in the name of a classmate. (Another reason I love this show: gives me an excuse to use the phrase “ne’er-do-well”.) Not coincidentally, this classmate was the teenage son of Zach’s dad’s opponent in the race for State’s Attorney, Glenn Childs. Zach also created a video mocking the third candidate in the State’s Attorney race, while making it look like the video came from Childs.

In the show, hapless Zach’s actions resulted in harm to his father’s campaign: what he thought was a harmless prank was taken by the Childs campaign as a declaration of war from the Florrick campaign. But thanks to a new law on the books in California, the real-life ramifications of such actions may now be even more serious — to the tune of monetary fines and prison time.

Effective January 1, 2011, California Penal Code section 528.5 makes it a crime to impersonate another person online. Specifically, “any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense.” Violation can result in a prison sentence of up to one year and a fine of up to $1,000 — plus a civil lawsuit from the aggrieved party. Of course, because our readers are all fine, responsible, upstanding citizens, I’m confident that none of you need to fear this new law. But let’s say you, too, were a dastardly ne’er-do-well (twice in one post!) embarking on a campaign of Internet impersonation. What would you need to know? Continue reading the full story . . . »



(History) Sniffing and (You)Porn: The Continued Crusade for Internet Privacy

What do you do if you discovered that your favorite website, YouPorn, is secretly gathering information about your Internet use? If you were California residents David Pitner and Jared Reagan, it seems you would sue the website in federal court and accuse it of violating your privacy, thereby announcing to the world that you are an avid porn watcher. (Privacy FAIL! Pitner and Reagan are not alone in their interests — according to the lawsuit, YouPorn ranks #61 in website popularity [other sources place it in the mid-70s…so now we’re no longer impressed] — but they are alone in having announced it to the world…until more individuals join the potential class action, that is.)

Let’s rewind. What exactly did YouPorn do and how did the plaintiffs figure it out? According to a recent study conducted by the Department of Computer Science and Engineering at the University of California, San Diego, YouPorn is one of 46 major websites that is engaged in “history sniffing” — a technical term that sounds just about as salacious as “YouPorn” itself, which is probably why some people prefer “history hijacking.” As you may have noticed when surfing the Web, links corresponding to URLs that you’ve visited before render differently than URLs you’ve never visited. According to UCSD’s study, history hijacking attacks occur when a site inserts invisible links into its web page and has Java Script inspect the links’ properties to determine whether the user has visited that URL — they will appear purple if the site has been visited and blue if they haven’t. Out of the Alexa global top 50,000 websites, the study discovered at least 46 (and possibly as many as 63) occurrences of history sniffing, on websites covering a wide range of topics from sports to finance to news to…whatever YouPorn is about. Continue reading the full story . . . »



Get Outta my Face(book): Does “Private” Really Mean Private?

[Ed. Note: Last Monday, we brought you Part 1 of 2 of this month's Facebook series, in which Dan Nabel walked us through some of the ethical pitfalls for lawyers litigating in a socially-networked world. Today, Rachel Wilkes wraps up our mini-series by giving you non-lawyers your due, explaining just how "private" your "private information" is once you move from the Facebook Wall to the courthouse steps. Preview: looks like everyone has yet another reason (besides the obvious) to move to California.]

A day in the life of an avid Facebooker might look something like the following. (This is what I hear, anyway. Not speaking from personal experience. At all. Ahem.): Get up. Eat breakfast. Post to Facebook about your breakfast. Drive to work. Post to Facebook about the horrible traffic in L.A. Do some work. Do some work on your farm on FarmVille.* Go to happy hour with co-workers. Post happy hour photos on Facebook… You get the idea.

All of a sudden, your 500 closest friends (or people you haven’t seen since elementary school) know every gory detail about your life. But that’s OK, because you adjusted your privacy settings so only your “friends” can see your profile details, and you don’t mind sharing those details with all of them. So it’s all still considered “private” vis-à-vis the rest of the world….right?

The answer to that may depend on which court is deciding. Continue reading the full story . . . »



Copyright Infringement 101: Don’t Try This at Home

Law Law Land’s loyal readers know much better than to commit unabashed copyright violations like the magazine Cooks Source. But because this story has become the Internet meme du jour, we couldn’t resist the opportunity to weigh in and use this as a “teaching moment.”

First, a recap. Cooks Source is a magazine targeted at “food lovers in Western New England” which was, until November 4, wholly unknown to this blogger (and, I’m betting, 99.99% of the Internet world). Cooks Source was thrust ignominiously into the spotlight when blogger Monica Gaudio posted a story about her discovery that Cooks Sourcehad taken her piece on apple pie (revealing that “As American as Apple Pie — Isn’t!”) and copied it into the magazine — with Gaudio’s byline, but without paying her a dime. When Gaudio e-mailed the magazine asking for a public Facebook apology and a $130 donation to the Columbia School of Journalism, she received the following response from editor Judith Griggs:

“…Honestly Monica, the web is considered ‘public domain’ and you should be happy we just didn’t ‘lift’ your whole article and put someone else’s name on it! It happens a lot, clearly more than you are aware of, especially on college campuses, and the workplace. If you took offence and are unhappy, I’m sorry, but you as a professional should know that the article we used written by you was in very bad need of editing, and is much better now than it was originally. Now it will work well for your portfolio. For that reason, I have a bit of a difficult time with your requests, albeit for such a fine (and very wealthy!) institution. We put some time into rewrites, you should compensate me! I never charge young writers for advice or rewriting poorly written pieces, and have many who write for me…ALWAYS for free!”

Wow. Go figure — all this time, I never knew that if a client receives a demand letter for allegedly infringing on someone’s intellectual property rights, the correct response is, “I did you a favor, so really you should pay me!” Genius.

But seriously, this email is perfect fodder for a little game I like to call, “How many gross misstatements of the law can you find in one paragraph?” (This may wind up being very problematic for Cooks Source, since turns out that this isn’t the first time Cooks Source has taken liberties with other peoples’ material…and far from it. Apparently, Griggs has been skating by on her incorrect legal opinions for some time without notice, with victims including Martha Stewart, NPR and Sunset magazine.) Continue reading the full story . . . »