Monthly Archives: May, 2013

How Do I Hire A Lawyer?

One of the more difficult things a person or business entity must do when confronted with a legal problem is choose a lawyer to represent them.  But this can be a critical decision because of the choice of lawyer often can be the most important factor in reaching a favorable resolution of the client’s legal problem.

To find a good lawyer, the client should get referrals from family, friends, and business associates, since successful representation of other clients is a strong indicator that the lawyer will be a good fit with the client.  The client also can check with the local bar association and legal referral sources (such as lawyer.com).  An Internet search can sometimes be useful as well, but more times than not such a search yields dozens of potential lawyers and it can be hard to sort through the mountain of information that can result from an Internet search.

Once the client develops a list of potential lawyers to represent him/her/it, an in-person “interview” is essential.   Think about it – a person would not hire an employee without an interview, so how can a client hire a lawyer to handle something as critically important as the client’s legal matter without an in-person meeting?

When the client meets with the lawyer, the client should consider the following:

Comfort Level – Does the lawyer seem compatible with the client on a personal level?  Like all people, lawyers come with all types of personalities and social skills.  Consider whether the client can communicate well with the lawyer, whether the client will be comfortable telling the lawyer personal information, and whether the client will be comfortable working closely with the lawyer.  Perhaps most importantly, does the lawyer convey a sense of empathy, understanding and interest in solving the client’s problem?

Experience and Credentials – The client needs to make sure to learn how long has the lawyer been in practice, both overall and in the jurisdiction where the legal problem exists.  For litigation matters, make sure the lawyer practices with frequency in the court and before the judge where the case exists.  Ask if the lawyer has worked on other cases similar to the client’s case and get examples of the lawyer’s success (or lack thereof) with such cases.

Cost – The client must have an honest and candid discussion with the lawyer about cost and get a good estimate of the likely cost to resolve the client’s legal matter.  It doesn’t do the client any good to hire an expensive lawyer that the client cannot afford, and then have to change lawyers later when the client can’t pay the lawyer’s bill.

Location – Consider whether the lawyer’s office is conveniently located for the client and near the court.

Here are some specific questions the client should ask the prospective lawyer:

  • How long have you been in practice?
  • How many cases like mine have you handled and what were the results?
  • How often do you settle cases out of court?  How many trials have you done on your own?
  • What do you estimate your fees and costs will be to handle my matter?  Do I have to pay a retainer?
  • Will you do the work on my matter yourself or will other lawyers in your office work on my matter?
  • What are the next steps?

Can Digital Media Files Legally Be Resold?

In the United States, it is well-settled that a person who purchases a legally-made (i.e. not a counterfeit or an infringing article) music CD, a DVD, a book, or really almost any physical object protected by copyright can legally resell such item.  This is true because of a doctrine of copyright law known as the “first sale doctrine.”  A critical aspect of the first sale doctrine is that the purchaser cannot make copies of the purchased item for resale.

The first sale doctrine means that someone who legally buys a CD or DVD or book can legally resell such item as long as is the original and not a copy.  Indeed, we all likely have seen the robust sales of used CDs and DVDs and books at places like swap meets.  But as we all know, we now are in a time when digital media has started to predominate over physical media.  For example, most people now download their music and movies using services like iTunes instead of buying physical CDs and DVDs.  Likewise, more and more people digitally download books and read them on devices like the Kindle instead of buying hard copies of the books.

So the question arises: can a person who has legally downloaded a digital file resell such file?  The determination of whether a person can legally resell second-hand digital files raises a number of interesting issues, such as whether the transfer can be done without making a copy of the digital file that is sold, whether such sales are prohibited by the user agreement of the service from which the digital file was downloaded in the first place (i.e. the iTunes agreement) and whether the first sale doctrine even applies to the resale of digital files at all.

Not too long ago, a company called ReDigi launched a service intended to allow the owners of digital files to resell such files through ReDigi’s online marketplace in a manner that ReDigi believed was legal and did not constitute illegal file sharing.  More details about ReDigi’s service can be found at the company’s website: www.redigi.com.

ReDigi was sued for copyright infringement by Capitol Records.  Capitol Records won the first battle in the litigation, with a New York federal court recently finding that ReDigi could not legally facilitate the resale of iTunes digital files.  Information about the court’s ruling can be found here: http://www.nbcnews.com/technology/no-you-cant-re-sell-digital-music-online-judge-tells-1C9145353.  But we are sure this is just the first battle in what will be a long war by ReDigi and others to find a way to legally get involved in what could be an extremely lucrative market for used digital music and other media files.

As we frequently have warned, the financial penalties that can arise from illegal file sharing and illegal file downloading can be severe so please consult with experienced copyright counsel before engaging in such conduct.

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