Monday, April 25, 2016
My love for HGTV is real and enduring. It started as a House Hunters addiction when I was a practicing lawyer looking for something mindless to watch when I got home at night and it has seriously spiraled out of control. I find something soothing about the formulaic nature of the shows; their familiarity is like a security blanket to me. And I've also realized that I've actually learned a lot about my taste. For what it's worth, I do feel like HGTV has made me think more about how I decorate my house, even if I can't afford a professional decorator.
So I gobbled up with interest every single article I could find on the recent "Love It or List It" lawsuit. If you don't know the show, it's one of my favorites for the snark between the competing real estate agent and designer. One half of a home-owning couple wants to renovate their existing home; the other half wants to give up and move away. Enter the "Love It or List It" team, showing the couple houses they could buy while simultaneously renovating their home. The theory is that the couple can then decide to love it, or list it.
I entertain no illusions about the "realness" of reality television (really, mostly I've learned from reality television that apparently an enormous number of people are tremendously good actors - while others are decidedly not), but this recent lawsuit attacks not just the "realness" of reality television but practically the *definition* of it: "Love It or List It," the homeowners accuse, were much more interested in making a television show than they were in renovating this couple's home. On at least some level, this lawsuit seems to be a challenge to what "Love It or List It" is: a television show or a general contractor.
As a general contractor, the homeowners weren't too happy with the show's performance. They allege shoddy work on their house, including low-quality product, windows that were painted shut, and holes big enough for vermin to fit through. (They also allege their floor was "irreparably damaged," although I think they can't possibly mean that in the true legal sense of "irreparably," because surely the floor can be repaired?)
It seems to me this is going to come down to the contract between the parties. What did "Love It or List It"'s production company promise? I would love to see what the contract said about the work that was to be performed, how that work was to be performed, and what the financial arrangements were (since part of the couples' allegations is that a large portion of their money was diverted away from the renovations). However, for some reason, I have had an incredibly difficult time locating a copy of the complaint (never mind the contract). None of the stories I've found linked to it, and I have had zero luck finding it through Bloomberg Law's docket search.
Friday, April 15, 2016
(image from IMDB)
Gilmore Girls fandom rejoiced when it was announced that the show would receive a revival on Netflix (and, even better, that it will include Sookie!). But, as often seems to be the case, developments that bring a fandom joy can come with legal entanglements. In this case, producer Gavin Polone's production company Hofflund/Polone has filed a lawsuit against Warner Bros., alleging breach of contract. The lawsuit, Hofflund/Polone v. Warner Bros. Television, Case No. BC616555 (behind paywall), was filed in the Los Angeles County, Central District, Superior Court of California.
The case revolves around the agreement between the parties concerning the original production of Gilmore Girls. The parties agreed, according to Hofflund/Polone, to provide Hofflund/Polone with "$32,500 for each original episode of Gilmore Girls produced in any year subsequent to 2003," along with some percentage of the gross and with "executive producer" credit. With the news of the recent Netflix revival, Hofflund/Polone allegedly reached out to Warner Bros. seeking compensation under the agreement. According to the complaint, Warner Bros. took the position that the Netflix version of Gilmore Girls is a derivative work based on the original series, and so therefore does not trigger compensation to Hofflund/Polone.
It's an interesting question that highlights one of the debates copyright scholars have: What, exactly, is a "derivative" work? Copyright owners have the exclusive right to reproduce their own works or works substantially similar to those works. They also have the right to produce derivative works based on those works, which, in the jurisprudence, has ended up using the same substantially similar standard to elucidate the "based on" language. Which means: what is the point of the derivative work right, if its standard seems the same as the reproduction right? This case has the potential to force confrontation with that problem: Where do we draw the line between infringement of the reproduction right and infringement of the derivative work right? When does a substantially similar work cross the line between reproduction and derivative work?
One thing that's been noted about the derivative work right is it tends to be talked about when there's some kind of change in medium or other kind of adaptation different from the original form (book to film, or translation from one language to another). The definition in the statute points us to that focus. Which raises the question: Is a Netflix revival more like a translation or adaptation of Gilmore Girls than it is like an exact copy of Gilmore Girls? Does this depend on how true it is to the original show?
The "television" landscape has shifted dramatically since Gilmore Girls premiered. It'll be interesting to see how contracts formed pre-Netflix-and-Amazon-production-era function going forward.
Wednesday, March 2, 2016
This case out of California, Gilkyson v. Disney Enterprises, Inc., B260103, involves the song "The Bare Necessities," which, as you can see from the above, is readily available on YouTube. The song was written by Terry Gilkyson (this might come up in a trivia competition someday, you never know). His adult children are the plaintiffs in this case.
In the 1960s, Gilkyson wrote several songs for Disney pursuant to a work-for-hire contract under which Disney was deemed the author and owner of the songs and Gilkyson was paid $1,000 per song together with ongoing royalties for certain licensing. The contract specifically excluded royalties for use of the songs in "motion pictures, photoplays, books, merchandising, television, radio and endeavors of the same or similar nature." Disney has paid royalties on the song to Gilkyson and his heirs but Disney has never paid royalties for use of the songs in any audiovisual medium, including DVDs. The Gilkyson heirs disagree with Disney's interpretation of the contract and believe that they are entitled to royalties for use of the songs on VHS tapes and DVDs. Disney argues that the four-year statute of limitations on breach of contract actions bars all of the Gilkysons' claims, because all of the VHS tapes and DVDs complained about were first issued sometime prior to 2007. Therefore, according to Disney, Gilkyson should have brought this claim by 2011, not, as it did, in 2013.
Disney loses this argument, however, based on the continuous accrual doctrine: "[E]ach breach of a recurring obligation is independently actionable." Basically, California law interprets the contract with Disney as being divisible, with each breach of that contract actionable and subject to its own statute of limitation period. Therefore, the court concluded that the Gilkysons could seek recovery of the royalties that were due for a period beginning four years from the filing of their complaint (so, from 2009 onward). According to this court, the California state court jurisprudence on this appears to be clear (although note that, at the trial court level, this case was dismissed without applying the continuous accrual doctrine). Disney pointed to a Central District of California case from 2001 that rejected the plaintiff's continuous accrual doctrine argument, but this California state court noted that it did so without any citation to any California case and that this court disagreed with that case's conclusion.
So it's on to the next step for these parties: fighting over the interpretation of the contract. Or settlement.
Saturday, December 5, 2015
WARNING: SPOILERS BELOW FOR "FACE THE RAVEN"
As we get ready for the season finale tonight, I thought I'd bring up the fact that a major story point of "Doctor Who" recently revolved around a matter of contract law.
If you watched the episode "Face the Raven," then you know that the Doctor's companion, Clara, found herself in mortal peril when she agreed to be marked for death instead of her friend Rigsy. Ashildr, the immortal woman who'd caused the whole problem, looked at Clara mournfully after being told of the substitution. She could have broken the contract for Rigsy's soul, she explained, but she couldn't break the contract for Clara's soul. Poorly phrased, at first this made no sense to me. I understood it as Ashildr being willing to breach the contract on behalf of Rigsy but not on behalf of Clara and I was annoyed (because I've always been very fond of Clara).
However, upon reflection, I think I've realized what they really intended: Ashildr and the deadly raven entered into a contract by which the raven would receive Rigsy's soul. Ashildr had the right to terminate this contract with notice to the raven (and that notice could take the form of Rigsy's willing transfer of the death mark), but she did not have the right to alter the terms of the contract to substitute anyone else for Rigsy. If she terminated the contract, the raven was free to carry out its death sentence on whoever carried the mark. When Rigsy transferred the death mark to Clara, he apparently voided the raven's contract with Ashildr to kill Rigsy. Which meant that Clara's death mark had no contractual implications: neither Ashildr nor Rigsy were involved with it or could affect its meaning in any way. Clara was outside of the realm of contract law. So I think we were truly meant to believe that Ashildr was powerless to fix Clara's situation, because all of the power she'd received under the contract had been terminated.
I am such a joy to watch "Doctor Who" with, as you can see. And after I went through all this analysis for my friends' benefits, they pointed out to me that this was an alien contract and who knows what alien contract law looks like. I wonder if alien contract law requires consideration...
Monday, November 9, 2015
California takes its laws against minors contracting seriously. Very seriously. Dancing with the Stars favorite Bindi Irwin, daughter of “Crocodile Hunter” Steve Irwin, must prove that her father was really killed in 2006 in order for her to get the earnings from the popular dancing show. So far, Bindi Irwin has allegedly presented “insufficient proof” that her father has waived those earnings. This despite worldwide shock that the beloved wildlife TV show stars was killed in a freak accident by a stingray in 2006.
California law requires underage entertainers to get court approval of their contracts to avoid the rampant abuses of minors in the industry of yesteryear. Parents of minors must now sign a quitclaim waiving any rights to the child's earnings. Bindi's mother, Teri, has already signed, but Steve has not, for obvious reasons.
The show’s owners, BBC Worldwide, is working with the court to work out the situation.
Under her contract with BBC, Bindi earns a guaranteed salary of $125,000 as well as weekly sweeteners for each week she stays on the show. So far, Bindi has done very well, even earning top scores one week. The shows airs on Monday nights on ABC.
Sunday, August 2, 2015
Remember Aereo, the company trying to provide select TV programs and movies using alternatives to traditional cable TV programming? That company went bankrupt after a U.S. Supreme Court ruling last year.
A federal court in Los Angeles just ruled that online TV provider FilmOn X should be allowed to transmit the programs of the nation’s large broadcasters such as ABC, CBS and Fox online, albeit not on TV screens. See Fox Television Stations, Inc. v. FilmOn X, LLC, in the U.S. District Court for the Central District of California, No. 12-cv-6921. Of course, the traditional broadcasters have been aggressively opposing such services and the litigation so far. Recognizing the huge commercial consequences of his ruling, Judge Wu certified the case for an immediate appeal to the Ninth Circuit Court of Appeals.
Said FilmOn’s lawyer in an interview: “The broadcasters have been trying to keep their foot on the throat of innovation. The court’s decision … is a win for technology and the American public.”
The ultimate outcome will, of course, to a very large extent or perhaps exclusively depend on an interpretation of the Copyright Act and not so much contracts law as such, but the case is still a promising step in the direction of allowing consumers to enter into contracts for only what they actually need or want and not, at bottom, what giant companies want to charge consumers to protect income streams obtained through yesteryear’s business methods. Currently, many companies still “bundle” TV packages instead of allowing customers to select individual stations. In an increasingly busy world, this does not seem to make sense anymore. Time will tell what happens in this area after the appeal to the Ninth Circuit and other developments. Personally, I have no doubt that traditional broadcasting companies will have to give in to new purchasing trends or lose their positions on the market.
Friday, July 3, 2015
Late night comedians everywhere celebrated when Donald Trump (pictured) announced his candidacy for President. We too are grateful for the blog fodder. Politico reports that the Donald is suing Univision over its decision to withdraw from a five-year $13.5 contract to broadcast the Miss USA and Miss Universe Pageants, which Trump co-owns. As Time Magazine reports here, NBC has also backed out of airing the Miss USA Pageant, and several people involved have also given the Donald their notice. Trump's partners were upset by statements he made as part of his Presidential campaign that disparaged Mexico and Mexicans. Never fear, the pageant will still be broadcast on Reelz (whatever that is).
Meanwhile, London's The Guardian reports that Harvey Keitel is suing E*Trade for withdrawing from a commitment with Keitel to feature him in a series of three commercials for $1.5 million. According to The Guardian, E*Trade really wanted Christopher Walken for the spots. It was willing to settle for Keitel, until Kevin Spacey became available. E*Trade offered Keitel a $150,000 termination fee, but Keitel says that's not enough.
Students are often astonished that major corporations sometimes operate through informal arrangements such as letters of intent. The fact that they do -- and that they can get in trouble by doing so -- is illustrated in Belfast International Airport's (BIA) attempt to enforce a letter agreement with Aer Lingus. As reported by the BBC, BIA read the letter as embodying a ten-year commitment from Aer Lingus to fly out of BIA. The court found that the agreement merely covered pricing should Aer Lingus continue to fly out of BIA for ten years. Aer Lingus decided to switch to Belfast City Airport, claiming that its arrangement with BIA was no longer financially viable.
Monday, February 23, 2015
2012 American Idol winner Phillip Phillips has lodged a “bombshell petition” with the California Labor Commissioner seeking to void contracts that Phillips now finds manipulative, oppressive, and “fatally conflicted.”
Before winning season 11 of “American Idol,” Phillips signed a series of contracts with show producer “19 Entertainment” governing such issues as his management, recording and merchandising activities. These contracts are allegedly very favorable to 19 Entertainment, for example allowing the company as much as a 40% share of any moneys made from endorsements, withholding information from Phillips about aspects of his contractual performance such as the name of his album before it was announced publicly, and requiring Phillips to (once) perform a live show once without compensation. 19 Entertainment has also lined up such gigs for Phillips as performing at a World Series Game, appearing on “Ellen,” the “Today Show,” and “The View.”
It is apparently not unusual for those on successful TV reality shows to renegotiate deals at some point once their career gets underway. Phillips claims that he too frequently requested this, but that 19 Entertainment turned his requests down. Can he really expect them to agree to post-hoc contract modifications?
Very arguably not. Under the notion of a pre-existing legal duty, a party simply cannot expect that the other party to a contract should have to or, much less, should be willing to change the contractually expected exchange of performances. This seems to be especially so in relation to TV reality shows where the entire risk/benefit analysis to the producer is that the “stars” may or may not hit it big. For hopeful stars, the same considerations apply: their contracts may lead them to fame and fortune… or not. That’s the whole idea behind these types of contracts. Of course, if industry practice is to change the contracts along the way and if both parties are willing to do so, they are free to do so. Otherwise, the standards for contractual modifications are probably the same for entertainment stars as for “regular” contractual parties.
Another issue in this case is whether an “agent” is a company or a physical person. Under the California Talent Agencies Act (“TAA”), only licensed “talent agents” can procure employment for clients. Phillips is attempting to apply the TAA to entertainment companies like 19 Entertainment. If Phillips is successful, the ramifications may be significant for the entertainment industry in which companies very often negotiate deals with performers without taking the TAA into account. In Citizens United v. Federal Election Commission, the United States Supreme Court famously gave personal rights to corporations, albeit only in the election context. Time will tell how California looks at the issue of corporate personhood and responsibilities in the entertainment context.
Adjudications under the controversial TAA are notoriously slow and could leave contractual parites in “limbo” for a very long time. Time and patience is not what Hollywood parties are known to have a lot of, so stay tuned for the outcome of this dispute.
Monday, February 16, 2015
Back in 2013, we mused about the seeming disconnect between public outrage at NSA data mining and the lack of comparable outrage with respect to private data mining. Nancy Kim and I have been writing in this area, and a recent report in the ABA Journal provides additional fodder for our scholarship.
One of the things that makes television's "smart" these days is that they have the ability to respond to voice commands. If you have this feature on, the television transmits your information to a third party, according to Samsung. If you turn the voice recognition feature off, your television still gathers the data but it does not transmit it.
Thursday, November 27, 2014
This is a rather unconventional list. I have just gone back into our archives and picked out one my favorite Meredith posts from each of the ten years since she started blogging here. It's amazing how well I remember each of these posts!
Meredith Vintage 2014: John Oliver and Sarah Silverman Tackle Payday Loans
Meredith Vintage 2013: Breaking: Bieber Requires NDA of Guests in His Home
Meredith Vintage 2012: Markets on the Mekong
Meredith Vintage 2011: Don't Buy This: 'Tis the Cyber Season of Reverse Psychology
Meredith Vintage 2010: A Hairy Breach of Contract Suit against Paris Hilton
Meredith Vintage 2009: Can Mad Men Bring Sexy Back to Contracts?
Meredeith Vintage 2008: Brown on Halloween, Promises & Signed Documents
Meredith Vintage 2007: Law Prof Takes on Cell Phone Company
Meredith Vintage 2006: British Court Must Watch Jerry Springer Show
Meredith Vintage 2005: The Commonality of Computers, French Fries and Arbitration
It was hard to make these choices. Lots of competition in the Meredith archives!
Thursday, November 20, 2014
In a couple of previous posts I've described the International Commerical Arbitration Moot (ICAM) and detailed some aspects of this year's problem. None of this is news to the contracts, sales, and arbitration professors around the country who are involved in this activity. Still I am surprised at how many schools do not have teams. I have also noted the possible use of the yearly ICAM problem as a source or inspiration of exam questions.
For professors who are interested in starting a team there are many things to consider other than substance. These involve selecting and preparing a team. Here at Florida this means trimming a class of 30 or so hopeful students down to a team of 4 to 6. It is a complicated task. We try as much as possible to hold try outs that resemble the actual competition in Vienna. Other coaches know that the ICAM competition requires students to know the facts and law with precision and to have certain mannerisms that the mainly European judges find appealing. For example, speaking slowly is critical since many if not most judges will have English as a second language. Also, the closer the English spoken is to British English, the better. Why? Most of the arbitrators will have learned English abroad. The use of virtually any slang means you should move up your departure date from Vienna because you will not go far in the competition. "Gonna" must be "going to." "Wanna" must be "want to." No "big bucks." No "you guys." etc. If there such a thing as an eloquent yet casual style, that seems to work best. Yes, theater is involved and the coaches are directors as much as teachers. Even "costumes" seem to count. I watched a rather uncomfortable session in which an arbitrator dressed down a competitor who had, well, "dressed down" by not having the top button of his shirt buttoned. I think most coaches would agree the competition starts when the students arrive at the U.S. departure airport because from that point forward they may be rubbing shoulders with the arbitrators they will encounter in Vienna.
Wednesday, July 9, 2014
By Myanna Dellinger
Recently, I blogged here on Aereo’s attempt to provide inexpensive TV programming to consumers by capturing and rebroadcasting cable TV operators’ products without paying the large fees charged by those operators. The technology is complex, but at bottom, Aereo argued that they were not breaking copyright laws because they merely enabled consumers to capture TV that was available over airwaves and via cloud technology anyway.
In the recent narrow 6-3 Supreme Court ruling, the Courts said that Aereo was “substantially similar” to a cable TV company since it sold a service that enabled subscribers to watch copyrighted TV programs shortly after they were broadcast by the cable companies. The Court found that “Aereo performs petitioners’ works publicly,” which violates the Copyright Act. The fact that Aereo uses slightly different technology than the cable companies does not make a “critical difference,” said the Court. Since the ruling, Aereo has suspended its operations and posted a message on its website that calls the Court’s outcome "a massive setback to consumers."
Whether or not the Supreme Court is legally right in this case is debatable, but it at least seems to be behind the technological curve. Of course the cable TV companies resisted Aereo’s services just as IBM did not predict the need for very many personal computers, Kodak failed to adjust quickly enough to the digital camera craze, music companies initially resisted digital files and online streaming of songs. But if companies want to survive in these technologically advanced times, it clearly does not make sense to resist technological changes. They should embrace not only technology, but also, in a free market, competition so long as, of course, no laws are violated. We also do not use typewriters anymore simply to protect the status quo of the companies that made them.
It is remarkable how much cable companies attempt to resist the fact that many, if not most, of us simply do not have time to watch hundreds of TV stations and thus should not have to buy huge, expensive package solutions. Not one of the traditional cable TV companies seem to consider the business advantage of offering more individualized solutions, which is technologically possible today. Instead, they are willing to waste money and time on resisting change all the way to the Supreme Court, not realizing that the change is coming whether or not they want it.
Surely an innovative company will soon be able to work its way around traditional cable companies’ strong position on this market while at the same time observing the Supreme Court’s markedly narrow holding. Some have already started doing so. Aereo itself promises that it is only “paus[ing] our operations temporarily as we consult with the court and map out our next steps.”
So I hadn't really thought about Crossfire since Jon Stewart shut them down. It was the pinnacle of Stewart's career thus far.
But I guess it's just hard to keep a terrible idea down when you have 24 hours of time to kill every day.
I don't know what CNN's little segment on sex contracts is supposed to accomplish. I guess it is intended to introduce its audience to one of its contributors, S. E. Cupp No doubt, Ms. Cupp has lots of interesting ideas and is telegenic and all that, but this segment reads like a Ms. America question gone wrong. "Ms. Louisiana, do you think colleges and universities ought to require written assent from both (or all) parties to any sexual act in which a student participates?"
Ms. Cupp starts, because her brand is "smart conservative," by lashing out at a culture that "disarms" students on college campuses. Her claim is that women can't protect themselves with pepper spray because of weapons bans on campuses. Of course, most of those bans do not include defensive weapons and anyway, if a woman used her pepper spary defensively in defiance of such a ban, she would 1) escape an assault and 2) perhaps face reprimand. It's not clear that the disarmament has occurred, nor does Ms. Cupp address the very real possibility that women are safer when men can't carry weapons on campus, but I digress.
Then she seems to complain about resources going to crisis centers and hotlines rather than to rape prevention but she is careful to say that crisis centers and hotlines are a good thing (way to give a balanced perspective, Ms. Louisiana!). Then comes the segue to the University of California's consideration of sex contracts. This is not news. Antioch College did it for years. Even we blogged about the subject two years ago.
What's Cupp's take? The idea is silly, but good for California for at least trying! Alright audience. Ms. Louisiana! Isn't she a great sport?
Cupp actually makes me feel nostalgic for the days when Camille Paglia would not just strike provocative intellectual poses but would actually take provocative intellectual positions on the right. I didn't agree with Paglia, but she expressed her original and outlandish ideas with verve and panache. She challenged her readers to consider their positions and think things anew. If anyone actually watches the new Crossfire, let me know if you see any signs of an ability to do so over there.
Friday, May 23, 2014
The event that fuels the first-season plot of the new F/X television series Fargo is a conversation in an emergency room waiting room. Lester Nygaard (Martin Freeman, left) has just been assaulted by Sam Hess, who used to bully him mercilessly in high school. Hess intimidates and humiliates Lester in front of Hess's comically neanderthal sons. Although Hess never actually hits Lester, the result is still a broken nose.
While waiting for someone to attend to his injury, Lester has a conversation with Lorne Malvo (Billy Bob Thornton, Right), who was injured when his car hit a deer and careened off the highway. Once the car came to rest in a snow-covered field, a man wearing only boxer shorts, who for some reason had been in the trunk of Malvo's car, jumped out and ran for the cover of the nearby woods. That's pretty much all we know about Malvo when he and Lester have their conversation.
Malvo manages to learn from Lester what had happened to him and that the man responsible for his injuries is named Hess. Malvo suggests that Lester ought to kill Hess, but Lester is not that kind of person (or at least not yet), so he dismisses the idea. Malvo offers to kill Hess for Lester. Lester just gives him that look of incredulity that has been a staple of Martin Freeman's wonderful career. Malvo insists that Lester say either yes or no, but a nurse interrupts the conversation to take Lester in for treatment, and Lester says nothing.
Spoiler alert: you may not want to read below the jump if you have not watched the show (and intend to do so) as a few plot details are revealed:
Sunday, May 18, 2014
By Myanna Dellinger
Recently, Jeremy Telman blogged here about the insanity of having to pay for hundreds of TV stations when one really only wants to, or has time to, watch a few.
Luckily, change may finally be on its way. The company Aereo is offering about 30 channels of network programming on, so far, computers or mobile devices using cloud technology. The price? About $10 a month, surely a dream for “cable cutters” in the areas which Aereo currently serves.
How does this work? Each customer gets their own tiny Aereo antenna instead of having to either have a large, unsightly antenna on their roofs or buying expensive cable services just to get broadcast stations. In other words, Aereo enables its subscribers to watch broadcast TV on modern, mobile devices at low cost and with relative technological ease. In other words, Aereo records show for its subscribers so that they don’t have to.
That sounds great, right? Not if you are the big broadcast companies in fear of losing millions or billions of dollars (from the revenue they get via cable companies that carry their shows). They claim that this is a loophole in the law that allows private users to record shows for their own private use, but not for companies to do so for commercial gain and copyright infringement.
Of course, the great American tradition of filing suit was followed. Most judges have sided with Aero so far, the networks have filed petition for review with the United States Supreme Court, which granted the petition in January.
Stay tuned for the outcome in this case…
Thursday, May 15, 2014
Today's New York Times features an article reporting on a 2012 study that indicates that consumers are better off being forced to buy bundled packages than they would be if they could choose to purchase only the cable channels they actually view. The argument seems to boil down to the fact that it costs the cable companies about the same to bring you four channels as it does for them to bring you 179 channels, so they are going to find a way to charge you the same regardless, and now you will miss out on watching channels that you only watch occasionally. Moreoever, the channels that are most in demand on a per-channel basis will now demand higher fees to make up for lost revenues from their sister stations that fewer people watch and which consequently cannot generate as much advertising revenue as they could under the bundled system.
Given that this story is based on one two-year old study and comes from Times correspondent Josh Barro, who also gives the thumbs up to Frontier Airlines for charging people extra to use overhead storage bins, I'm going to file this story provisionally under, "Wait, that can't be right," and see if any counterarguments turn up. The comments on the story indicate that some of the assumptions underlying the study and Barro's column could be questioned.
Monday, April 7, 2014
My student, Cecelia Harper (pictured), recently ordered television service. The representative for the service provider offered a 2-year agreement, which he said was “absolutely, positively not a contract.” Learned in the law as she is, Cecelia asked the representative what he thought the difference was between a contract and an agreement. He wasn't sure, but he did read her what he called "literature," which surprisingly enough was not a Graham Greene novel but the terms and conditions of the agreement, which included a $20/month "deactivation" fee should Cecelia terminate service before the end of the contract -- oops, I mean agreement -- term.
I have seen said agreement, and it includes the following charming terms:
- Service provider reserves the right to make programming and pricing changes;
- Customer is entitled to notice of changes and is free to cancel her service if she does not like the changes, but then she will incur the deactivation fee;
- Customer must agree in advance to 12 categories of administrative fees that may be imposed on her;
- Service provider reserves right to change the terms of the agreement at any time, and continued use of the service after notice constitutes acceptance of new terms;
- An arbitration clause that excludes certain actions that the service provider might bring; and
- A class action waiver
If the agreement had a $20/month deactivation fee in it, I could not find it. All I see is a deactivation fee of "up to $15." Rather, the "customer agreement" references a separate "programming agreement," and suggests that there are cancellation fees associated with termination prior to the term of the programming agreement.
So in what sense is this not a contract? My guess is that this is service providers trying to emulate what cell phone service providers have done with their "no contract phone" campaigns. For example, there's this one:
I'm guessing that the television service providers have learned that these ad campaigns have made "contract" into a dirty word. They are now seeking to seduce new customers by insisting that they do not offer contracts. Oren Bar-Gill will have to write a sequel to his last book and call it Seduction by Agreement.
If anyone has any other theories for why representatives for service providers are insisting that their contracts are really agreements, please share!
Friday, February 14, 2014
We at the ContractsProf appreciate your readership. Unfortunately, all of our bloggers are occupied at this time binging on Season 2 of House of Cards. Readers may stare at their screens, visit the TaxProf Blog or any other blog on the Law Professor Blog Network, or pass Valentine's Day by doing whatever it takes to get a free crib from Ikea (hat tip to Rachel Arnow-Richman).
We will resume blogging shortly.
Thank you for your patience.
Saturday, February 1, 2014
Running out of examples of unilateral contracts? Well, here's one: Hong Kong tycoon Cecil Chao offered $65 million to any man that could get his lesbian daughter's hand in marriage. That is, if a person could reasonably believe that Chao intended to enter into this bargain (it seems that he was in fact serious, especially in light of his wealth and his rejection of his daughter's sexuality):
Chao's daughter Gigi handled the situation with incredbile grace, writing an open letter to her father:
In her letter, Gigi Chao tells her father that she "will always forgive you for thinking the way you do, because I know you think you are acting in my best interests."
And she says she takes responsibility for some of her father's misplaced expectations.
When he first announced the colossal dowry in 2012, she said at the time she found it "quite entertaining."
But this week she appeared to set the record straight.
"I'm sorry to mislead you to think I was only in a lesbian relationship because there was a shortage of good, suitable men in Hong Kong," she writes. "There are plenty of good men, they are just not for me."
Here's Gigi in her own words:
It sounds like quite a few men responded to the offer with attempts to win Gigi's heart. But it is now too late. Even though Chao will not recognize his daughter's relationship with her long-time partner (really, wife - given that they wed in France even though the marriage is not recognized in Hong Kong), Chao has now revoked the offer.
Monday, January 27, 2014
Severe Economic Disruptions from Climate Change
For many, climate change remains a far off notion that will affect their grandchildren and other “future generations.” Think again. Expect your food prices to increase now, if they have not already. Amidst the worst drought in California history, the United Nations is releasing a report that, according to a copy obtained by the New York Times, finds that the risk of severe economic disruptions is increasing because nations have so dragged their feet in combating climate change that the problem may be virtually impossible to solve with current technologies.
The report also says that nations around the world are still spending far more money to subsidize fossil fuels than to accelerate the urgently needed shift to cleaner energy. The United States is one of these. Even if the internationally agreed-upon goal of limiting temperature increases to 2° C, vast ecological and economic damage will still occur. One of the sectors most at risk: the food industry. In California, a leading agricultural state, the prices of certain food items are already rising caused by the current drought. In times of shrinking relative incomes for middle- and lower class households, this means a higher percentage of incomes going to basic necessities such as food, water and possible medical expenses caused by volatile weather and extreme heat waves. In turn, this may mean less disposable income that could otherwise spur the economy.
Disregarding climate change is technologically risky too: to meet the target of keeping concentrations of CO2 below the most recently agreed-upon threshold of 500 ppm, future generations would have to literally pull CO2 out of the air with machinery that does not yet exist and may never become technically or economically feasible or with other yet unknown methods.
Of course, it doesn’t help that a secretive network of conservative billionaires is pouring billions of dollars into a vast political effort attempting to deny climate change and that – perhaps as a consequence – the coverage of climate change by American media is down significantly from 2009, when media was happy to report a climate change “scandal” that eventually proved to be unfounded.
The good news is that for the first time ever, the United States now has an official Climate Change Action Plan. This will force some industries to adopt modern technologies to help combat the problem nationally. Internationally, a new climate change treaty is slated for 2015 to take effect from 2020. Let us hope for broad participation and that 2020 is not too late to avoid the catastrophic and unforeseen economic and environmental effects that experts are predicting.
Assistant Professor of Law
Western State College of Law