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May 2000 
Vol. 6 No. 5 ISSN 1087-6219
Copyright and Trademark Notice | Disclaimer
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The Ninth Circuit has ruled that a company may use screen shots from a competitor's video game in comparative advertising. Such use does not violate the competitor's copyright, because it is a fair use under 17 U.S.C. section 107.
Bleem, LLC makes software that allows users to play Sony PlayStation games on a personal computer. The PlayStation itself is intended for use with a television. In its advertising, Bleem uses screen shots to compare how games look when played on a personal computer with Bleem's software, to how they look when played on the PlayStation through a television screen.
The district court enjoined Bleem from further unauthorized use of the screen shots in its advertising. The Ninth Circuit reversed.
The Copyright Act prohibits copying of copyrighted works. There is an exception for copying that is a fair use. Section 107 sets out four factors to be considered in determining whether a use is fair: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the copyrighted work used in the copy, and (4) the effect of the use on the market for, or value of, the copyrighted work.
In the present case, none of the factors weighed in Sony's favor: (1) Although Bleem's use was commercial, it was for comparative advertising, which benefits the purchasing public. (2) There is nothing about the nature of a video game that cries out for extra protection. (3) A screen shot is an insignificant portion of the entire video game. (4) Although use of the screen shots might reduce demand for PlayStations, that is not the result of unauthorized copying, but of competition. Bleem's use of screen shots had no effect on Sony's ability to do with its screen shots what it chooses.
Sony Computer Entertainment America, Inc. v. Bleem, LLC, 2000 WL 531067 (9th Cir. May 4, 2000).
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The Sixth District Court of Appeal in San Jose has ruled that the Federal Arbitration Act (FAA) preempts the exemption from arbitration contained in Labor Code section 229. The exclusion from the FAA for contracts of employment should be construed narrowly to apply only to employment of workers actually engaged in movement of goods in interstate commerce.
Edwin Sweeney sold cars for First-America Automotive. After he applied for the job, Sweeney agreed to submit any dispute concerning his employment to binding arbitration. When he filed a claim for unpaid wages with the California Labor Commissioner, FirstAmerica petitioned the superior court to compel arbitration. The superior court denied the petition, but the Court of Appeal reversed.
Section 229 provides that unpaid wages claims may be brought before the Labor Commissioner “without regard to the existence of any private agreement to arbitrate.” The United States Supreme Court ruled some time ago that the FAA preempts section 229. Perry v. Thomas, 482 U.S. 483 (1987).
However, the FAA excludes from its coverage “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” In Craft v. Campbell Soup Co., 177 F.3d 1083 (9th Cir. 1999), the Ninth Circuit ruled that the exclusion exempted all labor and employment contracts from application of the FAA.
Most federal courts of appeals to consider the issue have held that the exclusion only refers to workers who, like seamen and railroad employees, are actually engaged in transporting goods or services across state lines. See, e.g., McWilliams v. Logicon, Inc., 143 F.3d 573 (10th Cir. 1998).
In this case, the Court of Appeal adopted the majority view. If the exclusion applied to all labor and employment contracts there would be no need to refer specifically to seamen and railroad workers. Further, under the rule of ejusdem generis, the general term should be limited to matters similar to those encompassed in the specific terms. That interpretation is also consistent with the modern judicial trend favoring arbitration.
FirstAmerica Automotive, Inc. v. Sweeney, 79 Cal. App. 4th 1207 (2000), petition for review filed (Apr. 25, 2000).
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The California Supreme Court has ruled in companion cases that courts lack authority to overturn an arbitrator's decision not to award attorney fees. Even if the court would reach a different result under established legal principles, the arbitrator's decision does not exceed his or her powers.
Under established California law, an arbitration award may not be corrected or vacated because of the arbitrator's legal or factual error. Moncharsh v. Heily & Blase, 3 Cal.4th 1 (1992). The present cases are controlled by that general principle.
In the Moshonov case, a real estate purchase contract provided that the prevailing party should recover attorney fees in any proceeding to enforce the terms of the contract. Several parties agreed to submit their dispute concerning the purchase to arbitration. The arbitrator ruled for defendants, but declined to award any attorney fees, because the dispute involved tort claims, not contractual ones.
The submission to arbitration encompassed all matters in dispute among the parties. The parties litigated the entitlement to attorney fees before the arbitrator. They were bound by the arbitrator's decision, whether or not it was correct.
In the Moore case, an arbitration panel ruled generally for plaintiffs in a dispute over the validity and enforcement of secured loan agreements, but declined to award any compensatory damages. The panel did not make a finding as to whether there was a prevailing party. It directed each party to bear its own attorney fees.
A court might have been required to find that the plaintiffs were the prevailing parties. See Hsu v. Abbara, 9 Cal. 4th 863 (1995). However, the arbitration panel's failure to do so was just a legal error, not subject to correction.
The Supreme Court noted that it was not deciding whether an arbitrator's refusal to award fees expressly mandated by the underlying contract could be corrected. In these cases, the arbitrators had simply interpreted contractual provisions. No court may correct any legal errors that they may have made in the course of doing so.
Moshonov v. Walsh, 22 Cal. 4th 771 (2000); Moore v. First Bank of San Luis Obispo, 22 Cal. 4th 782 (2000).
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The Ninth Circuit has ruled that a district attorney is a state official when carrying out his or her criminal prosecution responsibilities. Therefore, a section 1983 plaintiff may not impose liability on the county that employs the district attorney for actions taken in connection with a criminal prosecution. The decision is consistent with the California Supreme Court's ruling on the same issue. See Pitts v. County of Kern, 17 Cal. 4th 340 (1998).
A state court granted Murray Weiner a new trial following his murder conviction. Weiner claimed that the district attorney's office hid blood evidence prior to the start of the second trial, at the conclusion of which Weiner was acquitted. He then sued the district attorney for wrongful prosecution under 42 U.S.C. section 1983.
A local government may be held liable for an official's conduct if the official had final policymaking authority for that government concerning the action that forms the basis for the section 1983 action. McMillian v. Monroe County, 520 U.S. 781 (1997). In McMillian, the Supreme Court ruled that an Alabama county sheriff was a state official, not a county policymaker, for actions related to his law enforcement functions. The determination rested on the treatment of the sheriff under state law.
In the present case, the counties set the salaries for their district attorneys and supervise their conduct and use of public funds. District attorneys may be removed by a written grand jury accusation submitted to state court, in a manner similar to that used for other county employees.
The Ninth Circuit found other factors more persuasive. The California Attorney General has direct supervision over every district attorney. The district attorney appears in court under the name of the State of California. County authorities may not interfere with the district attorney's investigative and prosecutorial functions.
Weiner v. San Diego County, 2000 WL 489588 (9th Cir. Apr. 27, 2000).
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The Ninth Circuit has ruled that the use of pepper spray on nonviolent protestors may impose liability under 42 U.S.C. section 1983 for unreasonable use of force.
Environmental activists staged nonviolent protests against what they perceived to be the unnecessary logging of ancient redwood trees in the Headwaters Forest. The protestors linked themselves together using self-releasing steel lock-down devices known as “black bears.” The protestors could release the devices with their hands. Forcible removal required used of an electric grinder to cut through the steel.
The Humboldt County Sheriff's Department had used electric grinders to remove “black bears” many times before the current protests. The Department became concerned that the sparks generated by the grinders posed a safety hazard. Therefore, the Department decided to use pepper spray as a pain compliance technique. No other law enforcement agency had used pepper spray in such circumstances.
At the scenes of the protests, the sheriff's deputies warned the protestors that pepper spray would be applied if they did not release themselves from the “black bears.” They then applied the pepper spray with a Q-tip to the corners of the protestors' closed eyes. Those that did not then release themselves were either carried out, or forcibly released by electric grinders.
The Fourth Amendment prohibits the use of unreasonable force to effect an arrest. Determining whether particular force is unreasonable requires balancing the nature and quality of the intrusion against the governmental interest. The balancing requires evaluation of (1) the severity of the crime, (2) whether there was an immediate threat to safety, and (3) whether there was active resistance.
In this case, the intrusion was more than minimal, because pepper spray inflicts excruciating pain. There was no need for such dramatic, invasive action. The protestors did not actively resist arrest. The crime, at most, trespassing, was not severe. There was no immediate threat to the protestors, the sheriff's deputies or to anyone else. Other, less invasive, alternatives were readily available, and were, in fact used.
Headwaters Forest Defense v. County of Humboldt, 2000 WL 531004 (May 4, 2000).
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Subsequent treatment of decisions reported on in earlier issues:
Harris v. Harris & Hart, Inc. (April 2000 issue), now reported at 206 F.3d 838 (9th Cir. 2000).
Lugtu v. California Highway Patrol (April 2000 issue), now reported at 79 Cal. App. 4th 359 (2000), petition for review filed (May 3, 2000).
Morillion v. Royal Packing Co. (April 2000 issue). modified (May 10, 2000).
Sharon P. v. Arman, Ltd. (January 2000 issue), petition for certiorari filed (Mar. 15, 2000).
Valencia v. Michaud (April 2000 issue), now reported at 79 Cal. App. 4th 741 (2000).
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