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States Ask for 5 Year Extension of Microsoft Judgment
Breaking Legal News | 2007/09/11 23:03

A group of state plaintiffs in the U.S. Microsoft antitrust case will ask for a five-year extension of a large portion of the 2002 judgment aginst the company, the group's lawyer said Tuesday. California, Connecticut, Iowa, Kansas, Minnesota, Massachusetts and the District of Columbia -- known as the "California group" -- want an extension of most of the middleware portions of the judgement, said Stephen Houck, a lawyer for the group. Microsoft still retains a huge lead in the operating system and Web browser markets, he said.

"Microsoft continues to have a stranglehold over the two products ... that nearly all consumers use," Houck said during an antitrust compliance hearing in U.S. District Court for the District of Columbia. "Very little has happened in five years ... in those markets."

The California group of states -- the larger of two groups of states that sued Microsoft for antitrust violations -- will ask for an extension of all the middleware portions of the antitrust judgement, except for a section that governs the royalties Microsoft can charge PC manufacturers for the Windows operating system. Most of the antitrust judgment was scheduled to expire in November.

Microsoft lawyer Rick Rule said the company would need time to respond to Houck's proposal. Microsoft first heard of the plan to ask for an extension on Friday, he said, and the California group plans to file a formal extension request with the court in mid-October.

Rule seemed to suggest Microsoft would fight the five-year extension. U.S. District Court Judge Colleen Kollar-Kotelly declined to impose a 10-year judgment in 2002, he said. "We think the picture of the computer industry is much rosier," Rule added. "We think it's clear that the decree has done its job."

Microsoft spokesman Jack Evans said the company will respond in more detail after it has seen the extension request. "We're a bit surprised that a few states are now requesting an extension of the consent decree, since they indicated just last month that they're not too fond of it," Evans said.

In August 2006, Microsoft already agreed to an extension of the section of the judgment requiring it to make its communications protocols available to other software vendors. Microsoft's efforts to fix technical documentation for the protocols have run into several delays. Houck on Tuesday asked Kollar-Kotelly to extend the communications protocol section of the judgment until 2012.

The California group does not "have any confidence" Microsoft will continue to improve the communications protocol program without oversight, Houck said. An independent auditor's report just issued questions whether Microsoft has released all the protocols mandated in the judgment, he added.

The California group's extension proposal comes after the U.S. Department of Justice and the New York group of states filed briefs last month saying the antitrust judgment has done its job. "There have been a number of developments in the competitive landscape ... that suggest that the Final Judgments are accomplishing their stated goal of fostering competitive conditions among middleware products, unimpeded by anticompetitive exclusionary obstacles erected by Microsoft," said the report from the DOJ and New York group, which includes five states.

But Houck Tuesday disputed that assessment. At the time of the judgment, a handful of PC vendors were preinstalling a competing Web browser on PCs, he said. Today, no major ones are, he said.



Craig's lawyers: Guilty plea was product of panic
Breaking Legal News | 2007/09/10 12:51
Under pressure from a newspaper investigation, Sen. Larry Craig "panicked" and pleaded guilty to disorderly conduct in a Minneapolis-St. Paul International Airport men's room, according to court papers filed Monday. The plea constitutes a "manifest injustice" and should be set aside, his lawyers say. The 50-page filing in Hennepin County District Court said Craig feared his arrest in the airport sting would prompt the Idaho Statesman to publish a story examining his sexual orientation. The Republican, who has represented Idaho in the U.S. Senate for 17 years, "felt compelled to grasp the lifeline offered to him by the police officer, namely that if he were to submit to an interview and plead guilty, then none of the officer's allegations would be made public," the filing said.

Craig pleaded guilty by mail to disorderly conduct in August following his arrest in June. A police report alleged that Craig had solicited sex from police Sgt. Dave Karsnia, which the senator has denied.

After Craig's arrest was made public, the Idaho Statesman published its five-month investigation into previous allegations of homosexual behavior. Craig said he is not gay.

Statesman editor and vice president Vicki Gowler defended the newspaper's investigation. "From the start, it was important to us to do a thorough and responsible investigation, outside of deadline pressures. We did that," Gowler said.



NY court to hear America's Cup case October 22
Breaking Legal News | 2007/09/10 10:55
The New York State Supreme Court on Monday agreed to hear arguments on October 22 in the America's Cup yacht-racing row if champions Alinghi and US challenger Oracle can't resolve their rules dispute.

At Monday's hearing, the court also urged the warring parties to continue to try to settle their differences out of court.

"We are very pleased with this decision, as we are keen to see this issue properly resolved with a minimum of further delay," said Tom Ehman, head of external affairs for the Golden Gate Yacht Club's team BMW Oracle.

Ehman said Oracle continued to support efforts to solve the dispute through mediation.

"Our strong preference remains to negotiate a solution. If this is not possible, today's decision provides for swift resolution through the courts," he said.

The GGYC of San Francisco launched its legal challenge arguing the new race protocol outlined by Swiss syndicate Alinghi for 2009 violates the historical "Deed of Gift" governing the race.

That's because Spain's Spanish Nautical Yacht Club (CNEV) has been tabbed to house its challenger of record Desafio Espanol.

The Americans say the Deed of Gift stipulates such a challenger has to involve a traditional yacht club which holds annual regattas.

CNEV was formed just days before before it issued the challenge and has never held a major regatta.

Ehman has called it a "sham club" that has given Alinghi unwarranted control over an event in which the challenger is traditionally involved in setting the competition terms.

Oracle and GGYC took their case to the New York Supreme Court, which has jurisdiction because the Cup was given to the New York Yacht Club in 1887 under the terms of the Deed of Gift.

The legal squabble has raised shades of the America's Cup court battle of the 1980s between New Zealand banker Michael Fay and US yachtsman Dennis Conner.

In 1987, Fay sued defending champion Conner after Conner refused to consider his challenge to race in a 90-foot monohull.

The court ordered Conner to take the challenge or surrender the Cup, and Conner responded by beating Fay in a 60-foot catamaran.

Fay later won a court ruling that Conner's catamaran defense was illegal, but that ruling was overturned on appeal.



Community court idea is pondered for downtown
Breaking Legal News | 2007/09/10 02:59

The Downtown Council is working to install more social "software" to complement the hard investment being made in the new arena, entertainment district and residential projects.

Four years ago, the property and business group started the Downtown Community Improvement District, an additional layer of privately funded services to make the area cleaner and safer. It's up for renewal and many people think it has been as much help reviving downtown as the major construction projects.

Now, the group is working closely with the Municipal Court to establish what is referred to as a community court. The concept got started in New York City in 1993 as a way to more compassionately and effectively deal with petty street crime and associated public safety issues.

It's intended to intervene in the futile cycle of having police pick up the same individuals repeatedly for misdemeanor crimes such as public intoxication and harassment, and then haul them to court where they'll perhaps serve a few days in jail before being released back to the street.

The community court approach identifies those individuals when they enter the criminal justice system. Rather than sending them off to jail, a case worker or similar professional shifts them to alternative programs such as drug and alcohol treatment or community service.

Say you're a chronic graffiti tagger. Rather than go to jail, a community court would return you to the neighborhood you trashed and require 40 hours of cleanup work.

"You don't solve crime, you come up with a better way to manage it and address quality of life issues," said Bill Dietrich, the president and CEO of the Downtown Council.

Sean O'Byrne, vice president of the council, said many people responsible for petty crime downtown often suffer from mental illness or addictions.

"The majority of individuals … end up anonymous on downtown streets, and downtown properties suffer as a result," he said. "This gives us a better tool to address the problem."

The community court approach also might help police do a better job keeping watch downtown and elsewhere.

Last December, Kansas City Police Chief Jim Corwin observed that homeless people contributed to downtown's image problem, and that, he said, was not necessarily a police issue.

"Am I supposed to arrest dirty people?" he asked at the time. "The homeless issue is a major downtown, urban problem. Cities that are successful have to take care of it holistically."

Corwin reaffirmed that idea last month when he decided not to enforce a new aggressive panhandling law approved by the Kansas City Council.

O'Byrne said a community court program would help police.

"They'll be able to spend less time booking people for the 20th time," he said. "We want them on the streets to protect people from more serious crimes. It's a time winner."

Dietrich and O'Byrne said Presiding Municipal Judge Elaine Franco is taking the lead on the issue. The judge could not be reached for comment, but last March she said a community court would work as well in Kansas City as other cities.

Franco supported a pilot community court program resolution being considered by the City Council.

"The consensus is that relatively low-level crimes that they are addressing in this resolution … should not be treated with a revolving-door concept approach," the judge said.

The council approved the resolution, but so far the program has not been implemented.



Court Strikes Down Key Patriot Act Power Again
Breaking Legal News | 2007/09/07 06:53

A U.S. District Court struck down a key provision of the Patriot Act as unconstitutional Thursday, marking the second time that a provision which allows anti-terrorism investigators to write their own subpoenas for phone and internet records and require the recipients to never speak of them violated the First Amendment.  The ruling (.pdf) strikes yet another blow at the FBI's use of National Security Letters, which were used to issue 143,074 requests for phone and internet records from 2003 to 2005, and as a recent Inspector General report showed, the widespread use led to abuses and sloppiness. Early this year, a damning report by the Justice Department's Inspector General found that the FBI used NSLs in violation of applicable NSL statutes, Attorney General guidelines and internal FBI policies. The FBI, along with the Inspector General, are now criminally investigating an office that sent more than 700 emergency letters, with false statements in them, to phone companies.

The ACLU sued on behalf of an anonymous internet service provider, which was served an NSL about one of the websites it hosted.  The ISP contested the order, which the FBI subsequently dropped, but the ISP remains unable to even acknowledge that it got a request, and the company's president said he's been forced to lie to his friends and girlfriend about it.

Judge Victor Marrero of the Southern District of New York ruled that the gag order and the strict rules about how to contest them amounted to prior restraint on speech and allowed the FBI to pick and choose which persons would be gagged, based on whether the feds believed the target might speak critically of the government.  Judge Marrero found, in a 106 page opinion, that the gag order provisions couldn't be struck down without affecting the rest of the statute so he found that the entire NSL provision was unconstitutional.  He also stuck down a provision that prescribed the standards courts should use in judging the FBI's arguments for keeping gag orders.  Marrero wrote that Congress had overstepped its bounds in setting out those standards.



Appeals court again rules against Mojave cross
Breaking Legal News | 2007/09/07 06:51
A federal appeals court on Thursday invalidated a land-exchange that sought to preserve an 8-foot tall cross in the Mojave National Preserve. The Christian symbol has been at the center of a long-running legal battle, reaching the appeals court three times. It also was the subject of language inserted in a defense appropriations bill that transferred government ownership of an acre of land to the Veterans of Foreign Wars in an effort to end government sponsorship of religious symbols on public land. The VFW said the cross was memorial for World War I veterans.

But the ruling by the 9th U.S. District Court of Appeals on Thursday upheld a lower court's ruling that said the land transfer was a sham. The appeals court had ruled before the land transfer that the cross was unconstitutional.

Judge M. Margaret McKeown, writing for the unanimous three-judge panel, said that "carving out a tiny parcel of property in the midst of this vast preserve—like a donut hole with the cross atop it—will do nothing to minimize the impermissible governmental endorsement" of the religious symbol.

Peter Eliasberg, an attorney with the ACLU, said his organization sued to remove the cross from its remote resting place outside Barstow because it was clearly a religious item being supported by the federal government.

"I hope this stops the litigation and the waste of taxpayers money," Eliasberg said.



D.C. Asks Supreme Court to Back Gun Ban
Breaking Legal News | 2007/09/05 08:32

The District today asked the Supreme Court to uphold the city's ban on private ownership of handguns, saying the appeals court decision that overturned the law "drastically departs from the mainstream of American jurisprudence." Most legal experts believe the court will accept the case, which could lead to a historic decision next year on whether the ambiguously worded Second Amendment to the Constitution protects private gun ownership or only imparts a civic right related to maintaining state militias.

The District argues in its petition for review that its law--one of the toughest handgun bans in the nation--should be upheld regardless of whether the court sides with the so-called "individualist" or "collective" legal theories.

"It is eminently reasonable to permit private ownership of other types of weapons, including shotguns and rifles, but ban the easily concealed and uniquely dangerous modern handgun," states the petition, filed by District Attorney General Linda Singer. It adds: "Whatever right the Second Amendment guarantees, it does not require the District to stand by while its citizens die."

"We're going to fight to uphold a law that . . . has public support," Mayor Adrian M. Fenty (D) said at a news conference outside D.C. police headquarters. "The only possible outcome of more handguns in the home is more violence. Our appeal will help the District of Columbia be able to continue to reduce gun violence."

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit split 2-1 last March in throwing out the District's law, which prohibits handgun ownership except by active and retired law enforcement officers. It also struck down a law requiring that rifles and shotguns kept in private homes be unloaded and disassembled or bound by trigger locks.

The court ruled that the Second Amendment "protects an individual right to keep and bear arms" and that "once it is determined--as we have done--that handguns are 'Arms' referred to in the Second Amendment, it is not open to the District to ban them."

The appeals court acknowledged that its decision was groundbreaking; only one other appeals court--the Fifth Circuit based in New Orleans--has recognized an individual's right to gun ownership, and it nevertheless upheld the federal gun-control law at issue. Nine other circuits around the country have endorsed the "collective" right.

That split is what makes it likely the justices will accept the case, and the lawyers who brought the case on behalf of six District residents who wanted to overturn the gun ban also want the court to take the case.

"We support the court granting [review] and plan on responding very quickly," said attorney Alan Gura, one of the lawyers who brought the case.

Singer said the city expects to hear by November whether the high court will hear the case. The District would be represented in court arguments by Alan B. Morrison, special counsel to Singer's office.

"This is more than an intellectual or ideological argument. It's real," Singer said. "For the residents of the District of Columbia, it's a matter of life and death."

The Supreme Court has not specifically addressed the gun rights guarantees of the Second Amendment since 1939, when it upheld a federal gun control law and seemed to side with the "collective" right argument.

The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed."

The appeals court's decision to focus on "the right of the people to keep and bear Arms shall not be infringed"rather than "A well regulated Militia, being necessary to the security of a free State'' reflects a growing trend in the legal and academic community.

So while the District argues in its petition that the appeals court decision ignored the "obvious military character" of the Second Amendment's language, it spends more time making the case that its law should be upheld even if a majority of the justices embrace the individual rights theory.

Its legal filing contends that the Second Amendment was meant to protect the states from federal intervention, not to restrict their legislative decisions. "States remain free to regulate arms within their boundaries so long as they do not thereby deprive the United States of the ability to obtain the assistance of an armed citizenry in time of need," the petition states.

And the petition says the high court should recognize that banning handguns, which it calls the criminal's "weapon of choice," was a reasonable response in an urban area marked by high crime rates.

District lawyers argue that the ability to own shotguns and rifles satisfied the desire of the law's challengers for a means of self-protection. The appeals court found that argument "frivolous."

The petition also includes a long list of statistics it says bolsters its claims that the availability of handguns increases the number of suicides and endangers children and police officers. "No other provision of the Bill of Rights even arguably requires a government to tolerate serious physical harm on anything like the scale of the devastation worked by handguns," it states.

Although the case decided by the appeals court was called Parker v. District of Columbia, District lawyers have filed their petition as District of Columbia v. Dick Anthony Heller. That is because the appeals court found that Heller, a security guard, was the only one of the six plaintiffs who had legal standing to challenge the law. His application for a handgun permit was denied by the government.



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