Lars S. Smith's blog

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Lindsey Smith. Note: Spelling is not a constitutional qualification.

Signing up for our New Live Client Law Client


As I discussed at the presentation to day, we will be offering a live client law clinic this spring. This is an exciting new opportunity her at the law school. The clinic will be located downtown at 416 W. Muhammad Ali Blvd. The topic will be housing cases referred to the clinic by Legal Aid (there may be other types of cases if timing and caseload permit, as determined in the discretion of Legal Aid). Students that participate will be representing these clients as the primary attorney dealing with the matter, and so this is a great opporunity to get some hands on experience with real clients.

The clinic will consist of a weekly classroom meeting, plus clinic office hours.

The clinic class will be limited to six students, and registration is only allowed by permission of the director, me. You can only take the clinic if you have completed 60 credit hours by the end of this semester. Here's how you apply.

Submit the following 3 documents to me by 4 pm on Tuesday, October 28 (my office is Room 286):
1.    Statement of Intent of why you wish to participate in the clinic (maximum 1 page, single spaced).
2.    Copy of your resume.
3.    Copy of your transcript.

I will make a decision on who will be in the clinic by 5 pm on Wednesday, October 29. Late applications will only be considered if space remains after consideration of timely applications.

Some things to keep in mind:

  • Housing court cases are heard during the morning, usually between 9 and 10:30 am. Therefore you should not schedule all of your other classes before noon. While we may be able to occasionaly arrange your case load to fit around your schedule to some degree, having extensive morning obligations will not work.
  • There will be a classroom component which will meet everyweek downtown at the clinic. 
  • You will have to sign up for offices hours which will require you to be present in the clinic offices.
  • The first week of school we will have a several hour "boot camp" to teach you about the basics of a housing case.Once we know everyone's schedule, we will arrange the time for this program.
  • You will have to sit in on housing court before the semester begins.
We will provide more detail about these items as we get closer to the beginning of the semester

Please contact me with any questions you may have.

Giving New Meaning to the Assignment-In-Gross Rule for Trademarks

Asset forfeiture related to criminal activity is not new, but taking a trademark may be novel. The Justice Department is asking a court to transfer rights in the Mongols biker gang trademark to the government. Unfortunately for the U.S. Government, assigning a trademark requires transfer of the associated good will. Is the U.S. government seeking to acquire the "good will" of providing biker gang servies?

Evicting Defaulting Landlords' Tenants


There is an interesting story on about how the Cook County, IL sheriff is refusing to evict tenants when their landlord's mortgage is in default. He is mad because the banks are evicting tenants that are themselves are not in default of their leases, but that the banks don't care about people and just want their money.

The story is curious for me, not only for the tragedy of seeing people evicted from their homes when they've done nothing wrong. My issue is why the banks would evict tenants that are paying? The real estate market is in a tailspin, and the market for rental property is probably as bad as that for residential real estate. So do the banks really expect to get paid off by selling at the bottom of the market? Most loans have a clause called an "Assignment of Leases and Rents," which allows the bank to take over the leases and collect the rent should the borrower, here the landlord, is in default. If the sheriff is correct, the banks are evicting tenants that are paying their rent, which the bank could claim. Why would they turn an asset generating income into a non-performing asset?

The problem in this story is that banks are not in the rental business. They are not skilled at property management, and would be overwhelmed if they had to manage all of the rental properties for the real estate loans that are in default. Also, most buyers of distressed property want to get the property free and clear of all junior claims (which would inlcude the tenants' leases), which is one of the benefits of buying a foreclosed property. Banks just want out, and will seek to sell the property in the way most likely to generate the highest price from auction. This sets up the perfect storm of tenants who have done nothing wrong, pitted against banks that are trying to get out from under bad real estate deals. In fact, we will likely see a lot more of this before all of the troubles in the market are over. I fear that the sheriff's decision, while laudable, will only forestall the inevitable, which is that banks will have to sell the property, and that buyers don't want to inherit the problems of the old landlords.

New Trial in Music Downloading Case


The trial court ordered a new trial in the RIAA's lawsuit against Jammie Thomas for making 24 copyrighted songs available through the file sharing software KaZaa. The decision hinged on whether the court's jury instruction, that a defendant may violate the Copyright Act merely by making a work available for distribution on a peer-to-peer network, without proof of actual distribution, was an accurate statement of the law. The court ruled that it had erred in the instruction, because "distribution" as defined in section 106 of the Act requires actual distribution. The court held that merely making the songs available in a shared folder was not a distribution. The court discussed that in other parts of the Act, and in other laws, making a work available was enough to constitute a distribution. However, the court held that those definitions were not relevant to the definition under section 106, but rather showed that if congress had wanted merely making a work available to constitute a distribution, it would have defined distribution in seciton 106 in the same way. Unfortunately for the defendant, the court also said that the act of RIAA's investigators downloading the songs could constitute the actual distribution. Read the decision on Wired's site here.

An interesting part of the case that had no bearing on the new trial order was the court's discussion of the damage award:

 While the Court does not discount Plaintiffs' claim that, cumulatively,illegal downloading has far‐reaching effects on their businesses, the damagesawarded in this case are wholly disproportionate to the damages suffered byPlaintiffs. Thomas allegedly infringed on the copyrights of 24 songs ‐ the equivalent of approximately three CDs, costing less than $54, and yet the totaldamages awarded is $222,000 - more than five hundred times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs.



Slides from Tiffany v. eBay Presentation


I recently gave a presentation to the presentation to the Intellectual Property Section of the Louisville Bar Association about the recent case Tiffany v. eBay. The case deals with the question of whether eBay can be held liable for hosting auctions of counterfeit Tiffany Jewelry. The court held eBay was not liable. 

New Faculty Position for Clinic


You may have seen that we're going to be starting a live client clinic, with the first students to be enrolled in January. I am the acting director for the moment, but we're searching for a full time person to run the clinic for us. The following is our ad. If interested, please feel free to send your resume to me:


Clinical Teaching Position at the University of Louisville School of Law

The University of Louisville School of Law seeks applications for a tenure-track clinical position. The successful candidate will work in the school's newly established clinic located in downtown Louisville, Kentucky. Because the clinic is new, its precise focus has not yet been defined. The faculty has agreed that as a general matter, the clinic will eventually have two branches: a transactional branch and a branch involving representation in civil cases. We anticipate that the particular skills, interest, and experience of the new faculty member will help define the particular focus of the clinic. Thus, this position affords a unique opportunity to help shape the mission of the new clinic. We will consider candidates specializing in transactional work, civil dispute resolution, or a combination. Candidates who can contribute to the diversity of the faculty are especially encouraged to apply.

Qualified applicants would ordinarily have at least 4 years of experience, either in practice or in combination with clinical teaching. Other relevant experience will be considered. Applicants must be a member of the Kentucky Bar or must attain membership by examination or reciprocity within one year of joining the faculty.

The University of Louisville School of Law is a relatively small institution located in the dynamic city of Louisville, Kentucky. It is the fifth oldest American law school in continuous operation, and was one of the first to adopt a mandatory public service requirement for all students. The law school is part of a major research institution, providing opportunities for cross-disciplinary work.

Interested candidates may submit an application to Professor Lars Smith, chair of the clinic committee, at the School of Law (502.852.7273). All applications should include a proposed "mission statement" for the clinic, discussing the particular area(s) on which the applicant would focus the clinic's activities.

Send resume to: 

Lars S. Smith
Professor and Samuel J. Stallings Chair in Law
University of Louisville
Louis D. Brandeis School of Law
2301 S. Third Street
Louisville, KY 40208
Tel: 502-852-7273
Fax: 502-852-0862



Protecting IP in China



This is a picture of the Silk Street market in Beijing. This market is well known as the place in Beijing where you go to buy knock-off name brand items, such as clothing and handbags. China has been cracking down on this, as you can see from the 3 story poster on the outside of the building with a picture of Jackie Chan saying "Protect the movies, say NO to piracy!" Of course, just because you put up a 3 story poster declaring that piracy is bad doesn't mean that you can't buy those things. Right inside the door you can buy knock off Hugo Boss and Lacoste shirts, Ferrari Jackets, and Gucci handbags. Right next door, there was a place selling pirated DVDs (you had to go into a secret room hidden behind a door masquerading as shelving, which was opened by remote control, to see what was available). But officially, they're against it. Of course, I have been offered fake Rolexes in New York and Boston, so it's not like it doesn't happen in the US.

Student Rallies for Earthquake Survivors


With all of the sad news coming out of China about the extent of the devastation from the earthquake and it's aftermath, I wanted to post some pictures I have of students at Zhongnan University having a candlelight vigil for the survivors.

The students also raised money to help the victims. I saw the same kind of response at United International College in Zhuhai.


Candlelight vigil

vigil 1


Lecturing at New College in Zhuhai


Llew Gibbons and I were invited to lecture at new college located in the southern China city of Zhuhai called United International College.It was started 3 years ago as an offshoot of Hong Kong Baptist University, in cooperation with Beijing Normal University in Zhuhai. It represents a new type of higher educational institution in China, because it is privately operated, and is modeled on a small, U.S. liberal arts college. It intends to have an undergraduate enrollment of 4,000 students, very small by Chinese standards. Many of the classes are taught in English. The school emphasizes what the Executive Vice- President, Edmund Kwok, described to me as "whole person education," which includes such features as the "voluntary service program" which encourages the students to volunteer in the community and around China, such as teaching in Tibet. Although the school, you get the sense that there is a real entrepreneurial spirit among the faculty, pushed by Edmond Kwok. In there first year, they admitted less than 300 students, and were renting space from Beijing Normal University. By the start of their third academic year, student enrollment is now around 2,200, they have a brand new facility, with wired classrooms, a student art exhibit hall, and full library.

I lectured on issues in IP law, to two different classes: International Relations, and Broadcast Journalism. I lectured in the International Relations class on trademark law and international treaties (specifically, the Paris Convention and the Trade Related Aspects of Intellectual Property to the General Agreement on Tariffs and Trade), and on derivative works and the right of publicity in the Broadcast Journalism class.

I was very impressed by the school. It seems like an exciting and vibrant instituion, it's staff dedicated to delivering a high quality, challenging and internationally focussed educational experience to its students. It does this while straddling two worlds - that of Hong Kong and mainland China. It's link to Hong Kong (it will be granting degrees from Hong Kong Baptist University) allows it some freedom to operate as an independent school. And yet it's mission is in great measure directed to students from the mainland.

As an example of how the world is getting smaller, our invitation came from Professor Morton Holbrook, who spent 32 years in the foreign service. It turns out that Professor Holbrook is a native Kentuckian, originally from Owensboro. He grew up with John Helmers, the father of my neighbor and friend John Helmers, Jr., who is an attorney in Louisville. Although Professor Morton now lives permanently in Zhuhai, he claims Kentucky as his U.S. domicile. He still keeps up with news from Kentucky through his subscription to the local Owensboro newspaper (Messenger Inquirer, I would assume). However, he did not have a Derby party this year, both because the race went off at 6:04 am in Zhuhai, and due to the fact that there were no other Kentuckians in Zhuhai to share a mint julep with that early in the morning.