Weekly Notes: legal news from ICLR, 16 March 2020

This week’s roundup of legal news and commentary includes an appealing copyright claim, a valid will on a paper napkin, retro-tech in the courts, a bungled police investigation, and updates on the legal and practical effects of Coronavirus restrictions.

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Jimmy Page (right) and Robert Plant, co-writers of Stairway to Heaven, in concert in 1973

Copyright

The ancient rock gods of Led Zeppelin have not lost their appeal, it seems — at any rate not the appeal that brought them before the US 9th Circuit Court of Appeals.

On 9 March 2020 that court affirmed the decision in June 2016 of the US District Court for the Central District of California after a jury trial in a copyright action alleging that the opening notes of the band’s song Stairway to Heaven infringed the rights of the late songwriter and guitarist Randy Wolfe, of the band Spirit, in an earlier song called Taurus. The claim has been pursued on behalf of Wolfe’s estate by trustee Michael Skidmore.

Giving the main opinion in Skidmore v Led Zeppelin & ors (16–56057), Circuit Judge McKeown said

“Like the jury, we don’t need to decide whether Stairway to Heaven has a place in the annals of iconic rock songs. Instead, we address a litany of copyright issues, including the interplay between the 1909 and 1976 Copyright Acts, the inverse ratio rule, the scope of music copyright, and the standards for infringement.”

She then gave a brisk summary of the court’s conclusions:

“The 1909 Copyright Act, which does not protect sound recordings, controls our analysis. The copyright at issue is for the unpublished musical composition of Taurus, which was registered in 1967. The unpublished work is defined by the deposit copy, which in the case of Taurus consists of only one page of music. We also join the majority of circuits in rejecting the inverse ratio rule and overrule our precedent to the contrary. Finally, we are not persuaded by the challenges to jury instructions and various other evidentiary and trial rulings. We affirm the district court’s entry of judgment in favor of Led Zeppelin and related parties.”

Despite its case having gone down like a lead balloon, the plaintiff has vowed to escalate it (take it further up the stairway, as it were) to the US Supreme Court. For earlier coverage of this epic litigation on our blog, see Coda: Spirit of Led Zeppelin (between rock and a hard case) and If music be the food of law, plead on…

Wills and probate

The Times reported last week that a testator’s instructions written on a paper napkin from McDonald’s, to “Split my property evenly” and the seven names of his children, had been formally recognised by a court in the Canadian province of Saskatchewan as Mr Langan’s last will and testament.

Judge Donald Layh said that one of Mr Langan’s daughters believed that Langan, a retired printer for the provincial government, who was said to have written the will while eating at a McDonald’s at some time between 2005 and 2015, had written it “when he thought he was having a heart attack”. He had apparently given the napkin to one of his daughters and told her to “Keep this in case something happens.” Later he would often say: “Sharon has my will, that napkin,” she wrote in an affidavit. Judge Layh said he was satisfied that the instruction had been made when “Mr Langan thought he was having a heart attack, a time when one’s mind would reasonably turn to the question of estate planning”.

The case has been compared to another from Saskatchewan in which a dying farmer scrawled instructions on the paintwork of the tractor under which he was fatally trapped in 1941, stating he was leaving all his estate to his wife. That, too, was held valid as a will.

Courts

There has been a lot of publicity and commentary about the HMCTS Reform project, which at a cost of over £1bn has been designed to bring the justice system of England and Wales into the age of the internet, complete with digital filing, virtual hearings and an online court. Part of the justification for the project was a realisation that many of the processes of litigation were being conducted in ways little changed since Victorian times. But some parts of the system are much much more modern, it has to be said. They may be as up to date as Microsoft’s elderly and no longer supported operating system Windows XP.

As Gareth Corfield reported last week on The Register,

“A critical crown court IT system and thousands of laptops used by the UK’s Ministry of Justice run on Microsoft’s obsolete and unsupported Windows XP operating system.

The story addresses rumours that both DARTS, the Crown Court digital recording system, and the XHIBIT court listings system were still running on XP. the Ministry of Justice responded somewhat cagily to Corfield’s inquiries, asserting that “one of the two court systems was running on Windows 10 machines — and the other is said to not be internet-facing”.

Nevertheless, the continued use of obsolete software could open the system to hacking, denial of service or blackmail, in much the same way as the NHS network was attacked not long ago, causing massive disruption.

Police

The HM Inspectorate of Constabulary report into the Metropolitan Police’s response to the Henriques Report into Operation Midland and its recommendations has found a culture of cover up and inaction.

The review found that the Met had no plan to implement the reforms proposed by Sir Richard Henriques — despite having claimed, in the time-honoured manner of public authorities, to have “learnt lessons” from the fiasco. Instead, an advisory group set up by the Met became preoccupied with restricting access to the Henriques report itself.

The bungled investigation mushroomed out of allegations made by Carl Beech, now serving an 18-year sentence for perverting the course of justice and fraud, among other things.

In October 2019, the Home Secretary asked the Inspectorate (HMICFRS) to review the MPS’s progress in learning from the mistakes identified by the Henriques report and the Kentia report (the Independent Office for Police Conduct’s Operation Kentia Investigation) into the conduct of five officers who had worked on the Operation Midland cases. The Inspectorate was asked to comment on the force’s:

- decision-making in investigations (including the concept of ‘belief’ in complainants at the point of recording crime allegations and thereafter);

- use of search warrants;

- supervision and reviews of investigations; and

- provision of information to complainants, suspects, the media and other parties during criminal investigations.

This report sets out our findings of that review. Get the report:

The Metropolitan Police – An inspection of the Metropolitan Police Service’s response to a review of its investigations into allegations of non-recent sexual abuse by prominent people (the Henriques report) (PDF document)

Get the press release: Met Police slow to learn lessons after Operation Midland

Coronavirus update

The Information Commissioner’s Office (ICO) has issued guidance for organisations on the risks and likely consequences of data protection breaches during the coronavirus pandemic.

“We know you might need to share information quickly or adapt the way you work. Data protection will not stop you doing that. It’s about being proportionate — if something feels excessive from the public’s point of view, then it probably is.”

The guidance is intended to reassure organisations that they won’t necessarily be penalised for minor breaches committed while resources are diverted away from usual compliance or information governance work in order to respond to the crisis and make arrangements, eg for home working or remote meetings or to share information about colleagues’ health situation.

Read the guidance: Data protection and coronavirus: what you need to know

In a post on The Small Places blog entitled Coronavirus and the Mental Capacity Act 2005, Lucy Series considers some of the ways the pandemic might affect decision making in respect of the treatment, care and welfare of those who may lack capacity — usually because of long-term cognitive disability, whether through dementia, learning disability, neurological diseases or brain injuries. But the Act may also affect those who are temporarily deprived of capacity through illness, for example because they are unconscious or delirious with fever.

Quite apart from questions of consent to urgent medical treatment, or withdrawal of treatment, there may well be issues over the prioritisation of increasingly strained medical resources. But as Series points out:

“The MCA is not a tool to manage limited resources via slippery best interests decisions. It will be important to be vigilant about any age- or disability-related discriminatory assumptions about quality of life and recovery in these decisions, both from an Equality Act 2010 perspective and under the MCA itself…”

Obiter J on Law and Lawyers discusses the effects in law of Covid-19 on the performance of contracts, and reliance on “force majeure” clauses or the doctrine of frustration of contract where performance is no longer possible: Coronavirus — business contracts

Article 19 have issued a policy brief entitled Viral Lies: Misinformation and the Coronavirus considering how to address problems around the proliferation of hate speech, misinformation and other problematic abuse of freedom of expression. It notes that

“In February, the World Health Organization (WHO) raised concerns about an infodemic caused by a flood of false and misleading information about COVID-19. Social media posts viewed more often than information from authoritative sources. … The COVID-19 outbreak has also stoked fear, discrimination and intolerance in many parts of may be followed by discrimination or violence.”

Another problem has been the response of governments in attempting to control the narrative.

“In their efforts to address these challenges, governments have at times embraced heavy-handed — emergence impaired the initial response to the outbreak. Governments in Southeast Asia have relied on repressive legislation to arrest and charge those spreading supposedly false information about COVID-19. The Iranian authorities have arrested social media users posting about the virus while simultaneously suppressing information about the outbreak.”

Governments should protect independent journalism and the free flow of information to promote transparency while taking proper steps to ensure media and social media publishers take action against misinformation and hate speech.

In a post on the UK Human Rights Blog entitled Law in the Time of Covid, Thomas Hayes considers the effect of emergency powers legislation currently being contemplated by the government, and its likely effect in the context of policing, employment law, and criminal justice.

In a post on the Nearly Legal blog entitled Emergency Powers, Giles Peaker considers legislation published by Labour which he helped to draft, which addresses the position of (most) renters where they fail to pay rent due to effects of the coronavirus, with the aim of the Govt incorporating it. The effect would be that for assured, assured shorthold, secure or Rent Act tenants, where there was failure to pay contractual rent that was in any way related to the effects of the coronavirus during a designated period, this would not count as rent lawfully due for the purposes of the relevant rent arrears grounds of possession.

As you’d expect, Gordon Exall on the Civil Litigation Brief blog has addressed the conduct of Civil litigation in a time of total uncertainty: 10 key points on difficulties arising out of the coronavirus outbreak. He points out that

“There are no easy answers but it is prudent to recognise the major procedural problems that coronavirus could case, and to have systems in place to deal with potential difficulties. Most significantly, however, the duty of the parties to co-operate is one that now must come to the fore.”

A Coronavirus update from the Lord Chief Justice states that

Given the rapidly evolving situation, there is an urgent need to increase the use of telephone and video technology immediately to hold remote hearings where possible. Emergency legislation is being drafted which is likely to contain clauses that expand the powers in criminal courts to use technology in a wider range of hearings. The Civil Procedure Rules and Family Procedure Rules provide for considerable flexibility.

Our immediate aim is to maintain a service to the public, ensure as many hearings in all jurisdictions can proceed and continue to deal with all urgent matters.

Courts around the world have suspended physical sittings during the pandemic.

On 13 March 2020 the Court of Justice of the European Union announced that

“As a result of a major crisis, the Court of Justice is obliged temporarily to restrict its judicial activities.

Until further notice, only those cases that are particularly urgent (such as urgent proceedings, expedited proceedings and interim proceedings) will be dealt with by the Court. The Court will contact, where necessary, the parties’ representatives to inform them of any reorganisation of proceedings.”

On 15 March 2020 the Ontario Superior Court of Justice issued notices stating that it would be “suspending all regular operations” until further notice. However, the “court will continue to hear urgent matters during this emergency period”. The notice anticipates

“the establishment of a Return to Operations (RO) Scheduling Court, where matters that have been adjourned will be rescheduled. We will strongly encourage counsel and parties to consent to future hearing dates. Should an appearance before the RO Scheduling Court be required, matters will likely be heard by teleconference.”

On 16 March the Supreme Court of New South Wales and the District Court of NSW made a joint announcement about new jury trials being

“temporarily suspended whilst the empanelment process is reviewed and steps are taken to seek to limit the close social contact amongst jurors which is a feature of jury trials. Current trials, where a jury has already been selected and empanelled, will continue.”

Here in the UK, plans by the courts to make greater use of video links in both criminal and civil proceedings have given rise to fears it could “hinder vulnerable defendants’ access to legal representation”, according to the human rights information site Each Other.

“Penelope Gibbs, director of the charity Transform Justice, told EachOther it is vital the government’s emergency measures are carried out only on “a short-term basis”.

A 2017 report by the charity found that more than 70 percent of 195 lawyers surveyed felt that video-links had a negative impact on defendants’ ability to communicate with their lawyer and the judge.”

The official guidance on Going through security at a court or tribunal building has been updated to allow the bringing in of hand sanitiser. But “You will be asked to use it in front of security staff to prove it’s not harmful.” Likewise, now that water is no longer distributed in some courts from shared jugs and beakers, any drinks in a plastic bottle or a disposable cup with a lid may be brought in, but “If your drink is opened or in a plastic bottle, you’ll be asked to drink some to prove it’s not harmful.”

It remains the case that “You also cannot take in items that security staff think could be used as a weapon, even if you think they’re harmless.” The imagination of security staff in considering what *might* be used as a weapon has given rise to some astonishing tweets from indignant and frustrated lawyers.

This year’s Legal Cheek Awards 2020, sponsored by BARBRI, will now be a virtual event. It will take place as planned on the evening of Thursday 26 March, but it will now take place online using the virtual events platform Hopin.

Many firms are now circulating details of how planned meetings will now take place in a virtual or partly virtual environment, in order to comply with new working policies designed to protect staff and visitors.

Middle Temple have just announced that all events and lunch (served daily in hall) have been cancelled until the end of March — at least. Other Inns are also cancelling or reviewing their activities in response to the coronavirus outbreak.

Legal profession

In Westminster Hall, formerly used to house the law courts, the Lord Chancellor Robert Buckland QC MP presided over the formal appointment of 114 new Queen’s Counsel on 16 March 2020. In his speech he told them:

“It is a public recognition by the Crown — of your excellence, of your experience, and your expertise in your particular fields of law. Steeped in tradition going back centuries, the title of Queen’s Counsel has always been a mark of quality. Attaining it sets you apart among your peers and signifies supreme confidence in your abilities as advocates and as lawyers.”

ICLR News

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And finally…

from Rachel Chan, with a suggestion for any who might *contract* the virus…

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That’s it for this week. Thanks for reading, and thanks for the tweets and blogs and links to content from which this post was derived. And stay safe!

This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.

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The ICLR publishes The Law Reports, The Weekly Law Reports and other specialist titles. Set up by members of the judiciary and legal profession in 1865.

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