Consider the following quote from Friedrich II, King of Prussia, often referred to as Frederick the Great:
“He who defends everything, defends nothing.”
Consider also this quotation from Mark Twain’s Pudd’nhead Wilson:
Behold, the fool saith, “Put not all thine eggs in the one basket”—which is but a manner of saying, “Scatter your money and your attention”; but the wise man saith, “Put all your eggs in the one basket and — WATCH THAT BASKET.”
These were two pretty clever fellows, and when two clever fellows try to tell us the same thing*, it behooves us to listen. And I am certainly not averse to riding on their clever coattails to try to make a specific point along these lines. Specifically, regarding the registration of trademarks.
When one registers a trademark, one must specify both at least one class of goods and services – often referred to as the “IC,” for International Class, which is a series of 45 numbers that designate the truly bizarre divisions trademark offices like the United States Patent and Trademark Office use to categorize things – and the specific goods and/or services in association with which one is claiming exclusive rights to use the mark. Here’s an example:
|Word Mark||BLIZZARD ENTERTAINMENT|
|Goods and Services||IC 009. US 021 023 026 036 038. G & S: COMPUTER GAME SOFTWARE AND INSTRUCTION MANUALS SOLD AS A UNIT; MOUSE PADS. FIRST USE: 19940517. FIRST USE IN COMMERCE: 19941115|
This is what I would refer to as a “good example.” The registration has one class: IC 009, which is the class including computer software, hardware and accessories. It has two listed goods: computer game software, and mouse pads. Simple. Elegant, even. Well done, Blizzard Entertainment. (Tangent: IC 028 is for toys and games. It’s a common mistake for people to register computer games in IC 028 because they see “games,” and that’s just one extremely straightforward example of how confusing this gets.)
A little explanation is in order before we do a bad example. You pay for trademark registrations according to how many classes you want to protect. Each class is a flat fee – usually $225.00 in the US, but it varies. You can file for any number of classes in one application: you don’t get a discount for multiple classes, but if you’re paying an attorney (which, and I acknowledge I’m biased, you really, really should) you may save some in legal fees if you have them do all the classes at once.
However, what’s protected is not the class you register, but the goods or services you list in that class. For instance, this is for computer game software. If I wanted to make, say, a spreadsheet program, and use the mark “Blizzard Entertainment” in association with it, that would theoretically be okay (in this case it would be a very foolish thing to do but let’s not get into that) even though spreadsheets and games are both computer software and therefore both in IC 009. There is no theoretical limit to the number of particular goods and services you can list in a given class.
And now we get into defending egg baskets.
Here’s a bad example. At least, in my opinion. I apologize in advance for the wall of text: just scroll down to resume the article. If you are the impatient sort, click here to skip it.
|Goods and Services||IC 009. US 021 023 026 036 038. G & S: Downloadable computer game software for video and computer games; Downloadable computer game programs offered via social media Computer peripheral devices; Downloadable image files containing photographic images and artwork, and text in the field of video and computer games; Downloadable image files containing photographic images and artwork, and text in the field of video and computer games offered via social media; Downloadable music files; Downloadable ring tones for mobile phones; Downloadable electronic publications in the nature of e-books, online magazines, online newspapers, electronic journals, and podcast transcripts in the field of computer and video games; Headphones; Musical juke boxes; Microphones; Baby monitors; Mouse pads; Portable media players; Portable telephones; Sound recording, transmitting and reproduction apparatus; Spectacle cases; Spectacle frames; Sunglasses; Telephone apparatus; Blank USB flash drives; Video game cartridges; Cases for mobile phones, tablets, laptop computers and netbooks, portable media players, cameras and other photographic equipment; Downloadable electronic game software for use on mobile phones, tablets and other electronic mobile devices; Video game software; Downloadable interactive multimedia computer game programs; Downloadable interactive multimedia computer game programs offered via social media ; Downloadable computer software for mobile phones, tablets and other electronic mobile devices in the field of social media for the creation and exchange of user-generated content, marketing research, and also for transmission of electronic communications and also for posting advertisements; Downloadable software in the nature of a mobile application for use in the field of social media for the creation and exchange of user-generated content, marketing research, and also for transmission of electronic communications and also for posting advertisements; Downloadable computer application software featuring video and computer games; Computer application software for mobile phones, portable media players, tablets, handheld computers and other electronic mobile devices namely, software for video and computer games; Computer application software for mobile phones, portable media players, tablets, handheld computers and other electronic mobile devices namely, software for video and computer games offered via social media; Mobile phone accessories and charms, namely, danglers for mobile phones; Eyewear; Eyeglasses; Mobile phone accessory charms; Mobile phone covers; Radios incorporating alarm clocksIC 041. US 100 101 107. G & S: Educational services, namely, conducting classes, seminars, workshops in the field of games; Training in the field of games; Entertainment, namely, providing on-line games; Entertainment, namely, providing on-line computer games available on social media; Entertainment in the nature of computer games, namely, providing temporary use of non-downloadable computer games; Entertainment, namely, providing non-downloadable computer games online; Entertainment services, namely, providing online video games available on social media; Entertainment services, namely, providing temporary use of non-downloadable interactive games; Entertainment services, namely, providing temporary use of non-downloadable electronic games; Entertainment services, namely, providing a website featuring games and puzzles; Entertainment services, namely, providing online video games; Organizing sporting and cultural activities, namely, conducting tournaments, contests and competitions in the field of computer games; Amusement parks; Arranging and conducting workshops for educational purposes in the fields of computers, graphic arts and video games; Entertainment services in the nature of providing casino and gambling facilities; Electronic desktop publishing; Entertainment services, namely, production of live, televised and movie appearances by a professional entertainer; Film production services, other than advertising films; Gambling services; Providing on-line computer games via a computer network; Operating lotteries; Organization of electronic games competitions; Party planning services for others; Production of music; Entertainment, namely, production of television shows; Providing amusement arcade services; Hosting social entertainment events, namely, karaoke parties for others; Non-downloadable electronic publications in the nature of e-books, online magazines, online newspapers, electronic journals, blogs, podcasts and mobile applications in the field of games; Publication of books; Publication of electronic books and journals on-line; Scriptwriting services for non-advertising purposes; Writing of texts for others; Electronic games services provided by means of a global computer network; Entertainment services, namely, providing online electronic games; Entertainment Information; Entertainment services, namely, providing online electronic games for use on mobile phones, tablets and other electronic mobile devices; providing information on-line relating to computer games and computer enhancements for computer games; Entertainment services, namely, providing temporary use of non-downloadable single and multi-player electronic interactive games via the internet, electronic communication networks and via a global computer network; Entertainment services, namely, providing temporary use of non-downloadable single and multi-player electronic interactive games via the internet, electronic communication networks and via a global computer network and on social media; Multimedia publishing of software, specifically of computer game software, electronic games and video game software|
From: https://tsdr.uspto.gov/#caseNumber=86968772&caseType=SERIAL_NO&searchType=statusSearch. By the way, this is the same trademark registration I wrote a post for Indie Gamer Team about. See: https://indiegamerteam.com/2017/03/27/stupid-legal-tricks-chapter-1/
Look at that listing of goods. Look at it. That is nonsensical. Now, I was young and inexperienced once too. Don’t ask me about my first interaction with the NFL’s trademark counsel: it still aches on rainy days. But whoever did this ought to be ashamed of themselves. (I know who did it. It’s in the TSDR listing. But let’s be gracious.) This is obviously a trademark attorney unfamiliar with Fred’s advice: they are trying to defend everything, and they are running a very real risk of defending nothing.
Never mind the ethics of running the meter while all that redundant nonsense was entered into the PTO’s online filing system. (Many firms charge flat fees for filing trademark registrations, which would avoid that issue altogether.) The first problem is that now they have an obligation to monitor the stream of commerce for all this stuff. There’s no point in registering a trademark for goods and services you don’t sell. Once you do, if you don’t watch out for people selling similar goods and services with a confusingly similar mark, you can lose your exclusive right to use it in various ways. That is a lot of eggs to watch. The costs, both monetary and opportunity costs, of doing so are not trivial. But more on that later.
Because the real problem is that when you enter your listing of goods and services, you are affirming to the PTO that you really do sell all the goods you are listing**. This is to prevent people from trying to stake out territory which they aren’t entitled to protect. The purpose of trademarks is to allow the public to associate goods and services with a particular source, and if you’re not a source of those goods and services you shouldn’t be allowed to prevent other people from offering them under the guise of trademark protection.
Now, King.com Limited is a successful company, a veritable mighty oak of industry whose branches spread far and wide, sheltering vast fields of commerce ‘neath their benevolent shade. But do they really make baby monitors with this mark on them? Is there really a “Super-With-Colorful-Fruits”-brand amusement park somewhere, perhaps adjacent to their sprawling corporate headquarters on Malta? I am willing to be proven wrong, but I hope you’ll forgive me if I’m somewhat dubious that this listing of goods and services is entirely accurate.
“But the Patent and Trademark Office gave them the registration,” you might say. “Isn’t it just smart lawyering to try to get what you can? If you cut a little bigger slice of cake than you should have, can’t you just put some back on the plate if need be?”
If you list goods and services you don’t sell and/or have no specific intent to sell on a registration, you may have committed a “fraud on the Office,” as the legal term of art goes. And one potential sanction for committing a fraud on the Office is having your registration cancelled. Not just the part that was in error. Not just the class which was in error. The whole registration. Which makes it much harder to protect your trademark. Not impossible: we’re not going to punish the public for your mistake. But much harder. Also, it makes the lawyer who filed it look extremely bad. But that’s their problem. We’re worried about King.com, who theoretically do have a valid interest to protect here.
By trying to defend everything, they have put themselves at risk of defending nothing. Imagine the fun opposing counsel would have putting somebody from King.com on the stand at a hearing and listing out all the alleged goods. “Do you really make baby monitors? Is there a Super-with-colorful-fruits brand roller coaster in your parking lot?” Assuming they may have been a little overbroad in their listings, their credibility would be destroyed. Now, either they make a particular thing with the mark on it or they don’t, and that wouldn’t be hard to prove. But whoever’s conducting the hearing is only human, and that kind of thing leaves an impression. Plus of course there’s the whole “Did you commit perjury or are you just ignorant?” thing to contend with. Again, makes people look extremely bad. Don’t do that.
Now that Fred has had his due, let’s talk about Mark’s egg basket.
Aren’t I being contradictory? Wasn’t King.com, through its attorneys, trying to put all its eggs in one basket? In a sense, the sense that they put everything they could think of in the registration listing, they were. But in the broader sense, they were not. The eggs in question here are not the marks, nor the individual goods,*** but the valuable associations between the mark and any individual good offered by the registrant. A solid association is the essence of a trademark. And by scattering what one assumes are the actual associations (i.e., the real goods which are important products to King.com’s business and which are sold in association with the mark) in that giant morass of stuff, they have taken them out of the basket and chucked them all over the field. They are scattered far and wide, and instead of a tidy basket of business-critical marks to protect you have a giant field covered with a few important marks and dozens of trivial ones which you must guard ceaselessly. Not the best approach, in my humble opinion.
And, in the not-so-distant future, a much more hazardous one as well.
Here’s why: Under the current procedures, an applicant is only required to submit one specimen (proof that they are using the mark in association with the goods, h/t @proofofuse) per class. That means that for the registration I cited above, King.com may have only had to submit two specimens, because all the marks are either for IC 009 or 041. So they could, theoretically, find things they really do make, like a computer game, submit proof of use for that, and they’re covered for, say, online newspapers. Now, again, I’m not saying that King.com has done anything wrong. For all I know they have Super baby monitors installed on each and every Super roller coaster marketed in Malta’s finest Super online newspaper. The fact that they’re using an international registration as the basis for their US registration also complicates things and again, let’s not get into that. But as an example of the potential for abuse of the system by submitting cherry-picked specimens for each class, it does the job.
The PTO is well aware that people (not pointing any fingers) can do this, and it’s getting worse as the number of registration applications increase and people, pardon my old, get stupider. They have initiated a new rule which allows them to audit registrations. Under the new rule:
...the USPTO may require the submission of information, exhibits, affidavits or declarations, and such additional specimens of use as may be reasonably necessary for the USPTO to ensure that the register accurately reflects marks that are in use in commerce in the United States for all the goods/services identified in the registrations, unless excusable nonuse is claimed in whole or in part.
This is right now still sort of a limited test program, but the final rule has been adopted. They can do this to any registration at any time, and they could require it for all registrations at any point. I for one could not be more pleased at this prospect. But attorneys who prefer what I call the “shotgun” approach to trademark registration listings are going to be in a world of hurt when this kicks in. They need to stop, and they need to stop now. They need to find the important eggs, put them in a nice strong basket, and watch that basket. Not only because it’s the right and legal thing to do, but because it will endanger their clients’ interests not to do it.
Finally, yes I am aware that often clients drive a lot of this nonsense. They get hold of the link to the Manual of Goods and Services, or some first-year associate trying to be thorough sends them a ginormous list of potential goods and services listings, and they get all excited. “Yes!” they cry. “Yes, we want all of that! Of course we are going to make roller coasters with baby monitors and advertise them in our online newspapers! Mike, send that list over to Product Development, stat! And in the meantime, put us down for one of each!”
Well, it’s your job as a trademark attorney to stop them. You must make clear to them that that isn’t a good idea, for all the reasons I’ve set forth. (Feel free to crib off me.) Explain to them that overreaching will give them so much to defend that they will divide their attention to the point where they can defend nothing. Don’t give them what they think they want: give them what they need, and tell them why. In the end, they will thank you for it.
Thanks for reading. If you have questions or further thoughts, please feel free to make a comment on this post. Engaged readers are the best!
*Well, okay, according to this article the Mark Twain part originated with Andrew Carnegie, but be that as it may.
**You can file “Intent to Use” registrations which do stake out territory you’re not actively using yet, but among other limitations you’re still affirming that you have a bona fide intent to use the mark with the particular goods and services you’re listing. “Roller coasters are fun, I might build a couple, who knows?” is not a bona fide intent to build an amusement park.
So last Wednesday (March 22, 2017, if you’re joining us late) the Supreme Court of the United States issued its decision in Star Athletica, LLC v. Varsity Brands, Inc, et al.
And a very small, highly specialized subset of LawTwitter went nuts.
Ron Coleman collected some great examples on his post Rah Rah Raw. (Trademark attorneys: Clever names on demand.) On the one hand, we have experienced copyright/fashion lawyers saying things like this:
— Staci Riordan (@staciriordan) March 22, 2017
On the other hand, we have intellectual property law professors saying things like this:
Huh? The Court overturned decades of circuit court cases without comment and did away with a central & widely accepted feature of doctrine. https://t.co/Q9ypR3FSfz
— Chris Buccafusco (@cjbuccafusco) March 22, 2017
If it’s not clear, that was a response to the prior tweet. Or even things like this:
Everything is now copyrightable, even something patentable. Horrible day 4 copyright law w #SupremeCourt decision on cheerleading uniforms
— Jeanne Fromer (@JeanneFromer) March 22, 2017
…when they really ought to know better. 140 character limit or not, that seems a bit over the top. But is it? Let’s review the decision.
First, a very brief summary of patent law vs. copyright law. Patents protect useful inventions. Copyrights protect artistic creations. In a sense, patents “trump” copyrights, in that you cannot use a copyright to protect a useful invention. (For instance, you cannot copyright the shape of an improved airplane propeller and claim nobody else can make a similar propeller. That’s what patents are for.) Patents are harder to get than copyrights, have much shorter terms, and cost a lot more both to obtain and to enforce. On the other hand, you can usually make a lot more money in a patent infringement suit than in a copyright infringement suit, there are fewer defenses to patent infringement than copyright infringement, and defenses to patent infringement are harder to raise.
Just to make things conf… I mean, interesting there are also what are known as design patents. These protect the “ornamental design of useful articles.” They are sort of a bizarre hybrid of patents and copyrights that have some of the worst (and best) features of both. They are outside the scope of the decision, but keep in mind that they exist when discussing this area of the law, if for no other reason than that “design” does not mean quite the same thing to a (design) patent lawyer that it does to a copyright lawyer, and I think that causes some of the confusion we are seeing.
Speaking of designs, in this context, designs are the key. Both parties in the Varsity Brands case make cheerleader uniforms, including non-team-specific uniforms with a variety of geometric designs on them. Here are examples:
Those are uniforms for which Varsity Brands, Inc. (the original plaintiff, which is why I call the case Varsity Brands, hereafter “Varsity”) had registered copyrights. Star Athletica, LLC (hereafter, “Star”) made some competing uniforms which allegedly infringed said copyrights, and Varsity sued Star for copyright infringement.
Please allow me first and foremost to direct your attention to Footnote 1 on Page 11 of the main opinion:
1We do not today hold that the surface decorations are copyrightable. We express no opinion on whether these works are sufficiently original to qualify for copyright protection, see Feist Publications, Inc. v. Rural Telephone Service Co., 499 U. S. 340, 358–359 (1991), or on whether any other prerequisite of a valid copyright has been satisfied.
Failure to read/understand/accept the text of that footnote is, in my opinion, behind most of the more sensational tweets/comments such as Professor Fromer’s supra. The assertion that you can now slap a copyrighted design on any old thing and claim the thing itself enjoys the protection of copyright meets its first and highest hurdle in the fact that the design must in and of itself be copyrightable. The opinion is not addressing the question of copyrightability of the underlying design. (I myself, though not familiar with the particulars of the registrations, find them somewhat dubious in that regard.) It is assuming arguendo that the design is copyrighted, and resolving an old and complex circuit split on the legal ramifications of attaching a copyrighted design to a useful article.
And yes, there was a complex split. I have seen people claiming as many as six different tests existed for determining when useful article limitation overcame copyright protection. Many of them considered, to some degree, how functional the article was as an independent factor. And this is not a new idea. It is an old principle, recently re-affirmed in TrafFix Devices, Inc. v. Marketing_Displays, Inc. that you cannot use trade dress to create “perpetual patents.” Similarly, in Kohler Co. v. Moen, Incorporated the same rule was applied to trademarks. All of the tests attempting to do the same with copyright were created by intelligent judges and it is not my intent to dismiss or belittle them.
But I think that Occam’s Razor (the original, not the newfangled version) is very relevant here: “Do not multiply entities beyond necessity.” The intent of copyrights is to protect artistic works (henceforth I will not call them “designs.”) Using functionality as an independent test, in the case of artistic works applied to useful articles, is adding an unnecessary entity. And asking questions about intent versus perception or relative economic factors, as some of the tests did, is definitely adding unnecessary entities.
As a simple example, Justice Breyer’s dissent wants to apply a somewhat different approach:
Can we extract those features as copyrightable design works standing alone, without bringing along, via picture or design, the dresses of which they constitute a part? (Dissent, page 10.)
However, as the main opinion points out, not only does this lead to implausible results (You can’t copyright a square canvas: does this mean any painting made on one can’t be copyrighted?) but it imposes a requirement not found in the Copyright Act. As the first paragraph of the syllabus says:
The Copyright Act of 1976 makes “pictorial, graphic, or sculptural features” of the “design of a useful article” eligible for copyright protection as artistic works if those features “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” 17 U. S. C. §101.
There are two “entities,” if you will:
- Can you identify the artistic work separately?
- Can it exist independently of the useful article?
In Varsity Brands, the answer to both questions is clearly yes. The artistic work is the pattern of lines and figures. We could, with a really sharp knife, take the top layer of fabric off and create an independent work without destroying or limiting the usefulness of the underlying article in any way. How artistic it would be is a separate question, but if this:
…is a prized exhibit of one of the world’s great art galleries, who are we to say that Varsity’s works are unworthy of a little protection?
In any event, Justice Breyer’s proposed test, just like all the other tests, includes new entities which are neither necessary nor present in the statute. The test set forth in the opinion puts the burden exactly where the statute set it all along, and just as importantly, where the underlying principle of copyright protection would reasonably set it: on the independent existence and originality of the artistic work. Once they are established the “canvas” upon which artistic work rests, be it an actual canvas, a t-shirt, or a cheerleading uniform, matters not.
So what does all this mean to practitioners on the ground?
Going forward, this test will put a lot more emphasis back on the fundamentals of copyrightability and the doctrines governing it. Copyrightability is a mixed question of fact and law, heavily fact-dependent. Principles of copyrightability determination such as scènes à faire, the merger doctrine, and even the basic requirement of minimal artistic creativity set forth in Feist are untouched by the decision. These principles will form the basis for defense of copyright infringement allegations involving useful articles, rather than elaborate and circuit-dependent tests regarding how the functionality affects the copyright protection afforded the copyright owner.
Likewise, when the useful article itself is ornamental, preemption by the principles of design patent law will still come into play. If the ornamental design and the useful object are irretrievably combined, only design patent protection will be available. And that distinction will still be available as a defense to any claim of copyright infringement in the article as a whole.
For an example of how that could apply to fashion, consider the work of Tomoko Nakamichi:
In the case of clothing such as that made by Ms. Nakamichi, the artistic work is usually not going to be any individual decoration, but rather the article of clothing as a whole. If you remove the “artistic” parts, there is almost nothing useful left. Part of that is the non-two-dimensional nature of the artistic work. You will note that the Varsity Brands opinion talks a lot about applying two and three-dimensional artworks to useful articles. But here the subcomponents are mechanically integrated into the article itself, and removing them would cause the article to be less useful. Distinctions like this will become more important with the alternative tests that existed before Varsity Brands no longer available.
Relatedly, copyright law has an extensive body of doctrine as to how much of a copyrighted artwork must be copied to create an infringement and how much modification an alleged infringer must perform before the alleged infringing work is no longer a copy or an infringing derivative work. Those principles still apply, full force, to any allegation of copyright infringement related to a useful article under Varsity Brands. Along with standard copyrightability defenses and patent/design patent preemption, these provide accused infringers substantial protection from the tsunami of liability some commenters are predicting in the wake of Varsity Brands.
I hope you found this post educational. Even more importantly, to the extent you may have been worried about a sudden surge in potential liability on behalf of creators I hope it has reassured you somewhat. If readers have any questions or comments, I would be delighted to hear them. Thanks for reading!
You may be wondering…
Now that Customs and Border Protection (CBP) and the Department of Homeland Security (DHS) have said they will abide by the court orders banning implementation of the Executive Order (EO) regarding travellers from particular countries, why are the lawyers still at the airports?
First and foremost, because the potential for abuse or, to be more charitable, differing opinions as to what the CBP should and should not do about these travelers is still very real. We are watching, we understand the legal system, and bureaucracy does not intimidate us. Attorneys are great observers and monitors in this situation. Having these teams in place at the airports is also a good way to get information about how travelers are being treated at foreign airports by the CBP. They have agents at many international airports, and may try to intercept people from boarding in the first place. Because airlines can be fined if they let people board flights to the US who aren’t eligible to enter, they are subject to pressure from the government.
Secondly, because there is still a great deal of fear, doubt and confusion in the minds of the general public and particularly in travelers from other countries who don’t know what’s going on. They hear conflicting reports, they see wild things on Facebook, and they’re scared. Again, a calm, purposeful group of people in suits explaining things to them is a valuable resource. We won’t be able to indefinitely sustain an operation just to reassure people, but it’s certainly part of the purpose.
Finally, because this organization is valuable training and provides continuity in case the EO is reinstated. With one partial exception, all the court orders are TRO. This stands for Temporary Restraining Order. Emphasis on the Temporary. This is how a court stops people from doing something, pursuant to the request of someone bringing suit, that it seems very likely that the person suing will win in court about. They’re hard to get, and if you do get one, it’s very likely that you’ll win and get a PI – a Permanent Injunction. In fact, that’s literally one of the requirements to get one in the first place. (Another is that some kind of irreparable harm has to be imminent if the court waits for the suit to be finished. “Being sent back to a country where you’re in danger” definitely counts.) But it is not automatic or assured. One or more of the courts which have issued TRO may allow them to lapse and/or find that the government was in fact entitled to do what the EO says, which means no PI will issue.
Even if the American Civil Liberties Union (ACLU) and the other people and organizations do get PI, the decisions of the District Courts which are granting them – those are the trial courts at the Federal level – are subject to appeal. First it goes to a Federal Court of Appeals, where it will be heard by a three-judge panel. That panel can:
- Sustain the order (and keep the PI,)
- Reverse it (and negate the PI) or…
- Remand it to the District Court for reconsideration (which means that the PI will likely be negated, but the District Court will get a chance to re-institute it if they do things “right” this time.) They can also just refuse to hear the appeal, which in practical terms is the same thing as sustaining the District Court’s decision.
Whatever happens in the Court of Appeals, the party who loses can ask for a hearing “en banc,” which means that instead of a three-judge panel all of the judges on the Court of Appeals hear the case and vote again, or they can appeal directly to the Supreme Court. If they get an en banc hearing, whoever loses that can then also appeal to the Supreme Court. At any stage of this, the order can be sustained, reversed, and/or remanded.
Things get really interesting when you find out that each Court of Appeals oversees several states, but that the decisions of one Court of Appeals are not binding on the Courts of Appeals that oversee other states. Only a ruling from the Supreme Court binds all lower courts. So it’s entirely possible that in the very near future, we could have some states (and the airports and Customs officers operating there) where the ban is in force, and other states where it is not. (This is called a “circuit split,” and it’s one of the main reasons cases make it to the Supreme Court. But that takes a while.)
So there are a lot of things that could happen which could put the ban right back in force in some places, or everywhere. If the airport legal clinics completely dissipate, they will have to be rebuilt from scratch if any of those things happen. So the prudent thing to do, and the plan so far as I know, is to keep them operating, even at a lower level, until we have a better understanding of how things are ultimately going to shake out. So please, keep listening, watching, and volunteering if you can. Donations, even small ones, will be greatly appreciated on an ongoing basis for the foreseeable future. Some groups need meals, some need tech, and many organizations will need money to defer expenses. You can follow @Helpthelawyers for links and information.
I know that every single expression of support, from lunch for twenty to a homemade cookie or just a handshake, is very encouraging to the people working in those airports, and everywhere else. Thanks for your support.
I hurt my back (and broke some bones in my foot) a few weeks ago: I have scarcely left the house since then. Just as I was starting to feel better, Friday’s Executive Order regarding immigrants from seven particular countries was passed. I don’t consider myself part of a “Resistance,” and I am not an open-borders advocate. But the way in which that EO was implemented was, in my opinion, an insult to the rule of law. And if the rule of law fails we are in graver danger than a thousand terrorists could hope to cause us. So I volunteered for an afternoon shift with @ORDLawyersHQ, the pro bono legal observation and assistance group operating out of O’Hare International Airport in Chicago.
Fortunately, my back tolerated it (though I was about out of gas by the time my shift ended) and I didn’t have to walk around, so I feel okay about it. (And yes, I’ll be back in the office soon. ) I’m very gratified and happy to have participated in this effort. As one Twitterer observed, our new President has done the impossible: he’s transformed lawyers into superheroes. And the people running this are heroes. Just the value of their time is incredible: I suspect that the team I was on would bill in or nearly in the five figures per hour. That means my shift constituted probably at least fifty thousand dollars worth of legal fees. That’s one shift, one day, one airport. Plus a major law firm donated a nice printer and a free Wi-Fi hotspot for us to use and sent one of their senior IT people to set it up. Donations of food and coffee, if you’ll excuse the expression, poured in.
Thanks to Eastman Egg Company and the Goddess and the Grocer, as well as Metropolis Coffee. (I don’t drink coffee, but everybody else was happy.)
What was it like?
First of all, I did my shift on Thursday. It was far from the chaos of the weekend and early in the week: CBP/DHS had reversed some of their harder-line positions and the court orders were kicking in. Lawyers can organize like nobody’s business and protocols and allocations of responsibility were pretty well implemented. We had only two serious “possible risk” situations during my shift: one resolved shortly before I left and the other was a private visa matter unrelated to the EO. We had some situations of concern which were due to occur this evening: I don’t have any information on them.
I had volunteered to be a shift leader/point of contact: the outgoing shift leader gave me some protocol documents and showed me all the responsibilities that needed to be allocated. I thought I was going to be the only shift leader but an amazing attorney who had already done a shift lead jumped in. (Hi, Rebecca!) We sort of naturally settled out that she handled most of the interfacing with the various matter managers, and I mostly did logistics. We cooperated and consulted quite a bit on some things, including on when to kick things higher up the chain.
The most visible matter was the canvassers, those people you’ve seen pictures of holding signs asking travellers if they need help. What may not be clear from most reports is that those people are standing next to where passengers leave security: the canvassers can’t go into the secure areas near the jetways. We were usually contacted by friends and relatives who were concerned that the people who they were meeting were not coming out of Customs after their planes landed. They were under the guidance of a canvasser leader (Hi, Sharada!) who I texted when I had any information on when a flight with potential detainees was incoming.
Aside from being a point of contact, I was also monitoring incoming flights with a very slick dynamic document someone had set up that constantly fed me information on arriving international flights. When one was from a country that seemed likely to have potential detainees, we would take extra care to try to see if anyone needed help. We also asked people coming off the flights if they had seen any unusual activity. If so, they would answer a short questionnaire either with a canvasser or by coming back to our activity center and talking to the intake manager.
The intake manager was fantastic. He not only managed all the data we got from travellers and waiting friends and relations, he reviewed our documentation in response to information requests from multiple groups, including one looking for potential violations of the orders for a possible Motion to Compel. (Hi, Nima!) Also, he spoke Farsi. A really versatile and helpful fellow!
We also had a social media person who was tweeting and posting to the Facebook group. I was sort of surprised how many attorneys (most of whom were much younger than I) didn’t use Twitter and weren’t even familiar with how it worked. Sometimes I forget that I am a tech attorney, as well as a big old geek, and other people just don’t care about this stuff. That went well, although we had some Tweets from people asking for help with the aforementioned private visa matter. That was tough: our options were limited.
At one point, I talked to a reporter from the Wall Street Journal, although I had one of our very able immigration attorneys (Hi, Yvette!) listen to what I said with instructions to stop me if I said something stupid. Fortunately she didn’t have to jump in, although she also answered some of the questions for which I was very grateful. We had reporters from the local NBC affiliate doing bumpers every so often, though so far as I know they didn’t interview any of us today.
UPDATE: The reporter, Tammy Leitner from NBC 5, did show us at the end of a story on a local artist affected by the EO. The intake manager, Nima Taradji, is also interviewed in this segment. Ms. Leitner, by the way, was very friendly and courteous when she was filming in our clinic.
— Tammy Leitner (@TammyLeitnerNBC) February 2, 2017
I also talked to a representative of a local Congressional representative, who was trying to help a constituent (again, the private visa matter.) She was very appreciative of the work we were doing and offered the Congressman’s support if we could use it.
The afternoon flew by, though we weren’t overwhelmed and there was time for discussion of the situation in general as well as some rather sneaky new tactics one of the people pulled out for secondary inspection told us about. I genuinely enjoyed meeting and talking with every single attorney and volunteer. There were several non-attorney volunteers who were interpreters and also helped with canvassing.
One thing we did not do was provide legal advice directly to anyone, and we certainly didn’t prepare any habeas motions or anything like that. By this point, that is being handled by people higher up the chain, including the ACLU and some dedicated attorneys at large law firms who are receiving our intake information and taking necessary actions. Sitting on the airport floor filing habeas motions was an emergency thing, assuming it actually happened (I wouldn’t be surprised, but I don’t know.) It’s no longer necessary: we were functioning as much as legal monitors and community outreach as actual immigration advisors.
Customs and Border Patrol definitely knew we were there: we didn’t interact with them during my shift, but the incoming shift leader (Hi, Alex!) said he had on an earlier shift. He was considering asking them about the matter that resolved right before I left, but fortunately it resolved before that was necessary. And at one point I stepped across the hall to get a drink at McDonald’s, and the two men ahead of me were uniformed CBP agents.
“This could be interesting,” I thought.
One of them turned around and saw my badges. I nodded and said, “Good afternoon, gentlemen. I hope things are going smoothly.” One of them responded very politely, “Afternoon. They’re going pretty smooth.” Things were quite cordial. Some police also stopped by at one point and asked if we knew about any planned protests. They were very friendly about it. We told them protests weren’t really our department and we didn’t know of any, but it seemed quite possible.
So, in summary, volunteering at the airport, at least at O’Hare, is not exactly something out of a legal drama, but it was good, useful work and I’m glad I did it. If you are an immigration attorney and/or an interpreter, please consider volunteering if you live near an international airport or other port of entry. Otherwise, you should still think about it, but be patient: right now they have plenty of volunteers and interest will probably drop off. Unfortunately, the need will probably not drop off as fast, so please keep in touch with your local volunteer group: they may need you well after the next crisis pulls media attention away from this one. If you are interested, here are some links:
O’Hare Volunteer Group: @ORDLawyersHQ on Twitter, http://www.signupgenius.com/go/5080d4cada92ea6f58-ordattorney to sign up as a volunteer.
General info: @Helpthelawyers on Twitter, current group information:
Hang in there, everybody. It’s going to be a long haul. But we’re all in it together.
(If you have questions, feel free to ask them in the comments and/or drop me an email.)