Category Archives: Criminal Liability

Marshmallow Justice: 10 Tales of Legal Fluff and Other Stuff

FluffJust about one hundred years ago, Archibald Query of Somerville, Massachusetts invented the first commercial marshmallow cream, which he pedaled door-to-door in Union Square.  Around 1917, he sold the recipe for $500 to two candy makers in Lynn who had just returned from World War I, and their company (Durkee-Mower) still makes Marshmallow Fluff today. In 2006, Union Square boosters began celebrating Query’s achievement with the Fluff Festival, a day of activities literally and figuratively stuffed with marshmallows. In honor of the 10th annual Fluff Festival, which takes place… More

Statute Criminalizing Election Campaign Lies Found to Violate First Amendment and Article 16

CaptureOn August 6, 2015, the Massachusetts Supreme Judicial Court (SJC) in Commonwealth v. Lucas struck down Massachusetts General Laws, Chapter 56, § 42 (Section 42), which criminalized the utterance or publication of “any false statement in relation to” a candidate for public office or a ballot question. Violations of the statute were punishable by a thousand dollar fine or up to six months imprisonment. Justice Robert J. Cordy, writing for a unanimous court, held that Section 42, which had been around since 1946, violated both the First Amendment and… More

Harry Potter Lawsuits And Where To Find Them


On July 31, 2015, Harry Potter author J.K. Rowling celebrates her 50th birthday, according to muggle sources. The enormous success of Rowling’s literary creation and its associated multimedia empire has spawned countless jealousies, countless imitators, countless parodists and countless pirates. The franchise has kept dozens if not hundreds of lawyers busy with precedent-setting copyright cases, trademark disputes, First Amendment battles over religious expression, and even the occasional breaking and entering. Indeed, it appears that Ms. Rowling and her works pop up in court more than any author since… More

Massachusetts High Court Upholds Cyberharassment Conviction Based on False Craigslist Ads

CaptureThe Massachusetts Supreme Judicial Court (SJC) has upheld the conviction of an Andover couple for violation of the Commonwealth’s criminal harassment statute by, among other things, posting fake ads on Craigslist. In brushing aside the couple’s challenges to the statute, the Court emphatically held that the First Amendment does not provide a defense to allegations of criminal harassment simply because the defendant uses words to carry out the harassment.  The Court also rejected the defendants’ attempt to “launder their harassment . . . through the internet to escape liability.”


New York Times Supreme Court Correspondent Adam Liptak Discusses Anthony Lewis’ Iconoclastic First Amendment Views

This past Friday, the keynote speaker at the Boston Bar Association’s Annual meeting was Adam Liptak, Supreme Court Correspondent for the New York Times. Mr. Liptak focused his remarks on the First Amendment views of his predecessor, journalist Anthony Lewis, the author of Gideon’s Trumpet and in many ways the father of modern legal journalism.  Mr. Liptak’s remarks were of particular interest to the Massachusetts audience, who also knew Mr. Lewis as a resident of Cambridge and long-time partner of former Supreme Judicial Court Chief Justice, Margaret Marshall. We summarize some of Mr. Lipak’s… More

Highlights of Congressional Hearings on Copyright Remedies: Statutory Damages, Small Claims and Felonious Streaming

1On July 24, 2014, the Judiciary Committee of the United States House of Representatives, through its Subcommittee on Courts, Intellectual Property and the Internet, held hearings on the subject of copyright remedies. Most of the discussion focused on the efficacy of statutory damages, which provide for awards between $750 and $30,000 per infringed work (with adjustments up to $150,000 per work for willful infringement). There was also discussion of the Copyright Office’s recent proposal for a small claims tribunal.  The proposed tribunal would enable individual… More

When “Slacker” Was A Dirty Word: Defamation And Draft Dodging During World War I

This summer marks the 100th anniversary of the outbreak of World War I.  The Archduke Ferdinand was assassinated on June 28, 1914 and, by the end of August 1914, Germany, Russia, France and the United Kingdom had joined the war. The United States entered the fray on April 6, 1917, by declaring war on Germany. This was when the word “slacker” suddenly became defamatory.

The Slacker Lists

The U.S. armed services actively solicited volunteers with an astonishingly inventive array of recruitment posters, but it wasn’t enough. On May 18, 1917, the Selective Service Act authorized the raising of… More

Supreme Court Fires Shot Across The Bow Of NSA Metadata Collection

photo-3 Recent revelations concerning the activities of the National Security Agency (“NSA”) include reports that the NSA and other government agencies have – in secret – routinely collected in bulk the “metadata” associated with millions of telephone users within the United States. While metadata does not include the actual words spoken in a telephone call or written in the body of an email, it often includes transactional data that, in the aggregate, reveals sensitive personal information. Whether and to what extent metadata deserves protection from government surveillance… More

When Judges Met Jazz: The First Decade Of Jazz Law

In honor of African American Music Appreciation Month, sometimes known as Black Music Month, we recall the first judicial decisions in which jazz music was the subject of a legal dispute. Although jazz originated in the late nineteenth century in the Southern United States, the word “jazz” appears to have been applied to music for the first time between 1912 and 1915.  Before the decade was out, jazz music was producing legions of listeners, late night dance crowds and plenty of middle class angst. By the 1920’s, controversies concerning the genre had wended their way through the lower… More

Second Circuit Reverses Convictions in Data-Theft Prosecution and Narrowly Interprets Federal Criminal Statutes with Important Intellectual Property Implications

On our sister blog, Security, Privacy and the Law, our colleague Daniel Marx reports on a recent Second Circuit case addressing the limits of criminal liability for the theft of intellectual property. It turns out that criminal liability can turn on some rather technical details – such as whether the allegedly stolen source code was copied to a flash drive or disk actually owned by the employer. Marx notes:

If Aleynikov had copied data onto a Goldman disc, he would have violated the NSPA, but instead he uploaded it to a… More