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We The People: Thoughts on Constitution Day

By
Josh Gilliland
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“We The People.” Three bold words that declared the foundation of our country to ensure freedom. For Constitution Day, let’s remember the purpose of our Government:

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

I have always been proud of the fact I was born on Constitution Day. Granted, my mother enjoyed reminding I was three weeks late. I apparently was waiting.

I believe in “We The People.” I believe in a “more perfect union.” I believe in establishing justice and securing liberty. I also remember gas lines as a child and a sense that our best days were behind us. However, I remember how things turned around when we began to believe in ourselves once again. We need to believe in ourselves once again.

There are those who understandably have a hard time believing in ourselves. High school freshmen should not be arrested for building a clock. Such ingenuity should be rewarded with a job, not a handcuffs. It is difficult to imagine the ability to be a clocksmith to somehow be probable cause for arrest.

There is another elephant in the room: those running for President of the United States should focus on how to unit and inspire, not insult and divide.

I believe in the United States, despite our very disappointing moments. Look at the outcry for those who called out injustice and you can see the better angels of our nature. Moreover, the American people rarely reward Nativism with elected office. Abraham Lincoln did not want to lower the bar for the Know-Nothing Party to join the Republicans in 1860. I am confident we will continue the tradition of building a bright future and not demonizing other human beings.

Our Constitution was designed to protect freedom with a working government containing checks and balances to avoid oppression. The Bill of Rights furthered this intent that the People would be free from government infringement, ranging from speech, to quartering of soldiers, to unlawful searches. “We The People” have fought wars, faced fire hoses, and endured tube feedings, for these rights to protected. Those sacrifices have not been forgotten. Every day those rights are vindicated by lawyers and judges across the country.

Every lawyer has taken an oath to uphold and defend the Constitution. So on this day, let us remember that everything who do is to ensure a more perfect union for “We The People.”

I am also hoping for cake, but that’s me.

Could Vanessa Marianna be Convicted for RICO with Kingpin?

By
Josh Gilliland
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In Marvel’s Daredevil on Netflix, Vanessa Marianna goes from art dealer to dinner date to girlfriend to fiancé of Wilson Fisk. Vanessa learned of Fisk’s criminal activities from domestic terrorism to killing his father. Could Vanessa also be convicted for Wilson Fisk’s many crimes?

As a preliminary matter, Wilson Fisk could be tried in Federal Court for Racketeering. The Racketeer Influenced and Corrupt Organizations Act (RICO) states, in relevant part:

(a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which such person has participated as a principal within the meaning of section 2, title 18, United States Code [18 USCS § 2], to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.

18 USCS § 1962.

Racketeering Activity is a long list of criminal activities, including any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical or any act relating to bribery, mail fraud, and many other crimes. 18 USCS § 1961.

Vanessa was never directly involved in planning drug deals, murders, and illegally evicting tenants from their homes. The closest Vanessa ever comes to outright engaging in an agreeing to a crime was when she was hospitalized. Fisk told her, “I will make them suffer for what they have done,” to which she replied, “I expect nothing less.” This is not exactly a conspiracy and there are no further actions by her.

Did Vanessa Aid and Abet the Kingpin?

Vanessa provides a large amount of emotional support to Wilson Fisk. Could this be considered aiding and abetting Fisk in his crimes?

New York law on aiding and abetting states:

When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.

NY CLS Penal § 20.00

Would Vanessa providing “emotional support” be considered “intentionally aids such person to engage in such conduct”? Vanessa did stand by Fisk for his big press conference, attended public parties, and knew Fisk engaged in criminal activities. However, she was never actually present at any criminal action. Moreover, she likely had plausible deniability of planning any event, but did have knowledge, such as the bombing of the Russian mobsters.

Case law states that “Silent approbation or pleasure in an assault and battery inflicted by another does not make a person, who has not encouraged or aided the perpetrator, liable in damages therefor.” Duke v. Feldman (1967) 245 Md. 454, 457-458.

In the Duke case, a husband assaulted a victim while the wife was unaware in the family car. The wife drove the husband away after the assault. There was no evidence that the wife in any way aided or abetted in the crime. As the Court explained, there was no evidence that she “assisted, supported, or supplemented her husband’s action or that she instigated, advised, or encouraged the commission of the tort. There was nothing in the evidence which would enable the jury to do more than speculate that her driving her husband away was part of a design to perpetrate the assault.” Duke, at *458.

Vanessa admitted being with Fisk would be “complicated.” The same could be said for prosecuting her. There is a very strong argument that she knew her support of Fisk was intentionally aiding him. However, there is a very strong argument she lacked the required intent for the crimes being committed. Moreover, she appeared to be outside of the planning for criminal activities. This would make prosecuting her a challenge, but probably would not stop charges from being filed. Federal prosecutors would likely charge Vanessa in order to get her cooperation in prosecuting Wilson Fisk.

Mike Towry: From Jack Kirby to San Diego Comic Con

By
Josh Gilliland
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Mike Towry helped found San Diego Comic Con in 1969. His story of how he and a group of friends met Jack Kirby, Ray Bradbury, and started what would become one of the largest geek conventions in the world is heroic. The fact he was just 14 years old, and an early comic book collector, only makes his story more impressive.

First_Kirby_Trip_2
This photo was taken during the first visit to see Jack Kirby on November 9, 1969 at the Kirby-family home in Irvine, California. From left to right: Richard Alf, Wayne Kincaid, Jack “King” Kirby, Mike Towry (in back), Dan Stewart, Bob Sourk, Barry Alfonso (in front), and Sylvia Alfonso (Barry’s mom). Richard, Dan, Bob, Barry, and Mike Towry were the ones who co-founded Comic-Con with Shel Dorf. Mike was 14 in this photo, Barry was 12, and Richard was 17.

Mike shard his adventures from placing ads in Marvel comics, the advent of comic book bags, and how Jack Kirby would turn the intrepid founders into comic book characters will make any geek smile.

san-diego-five-string-mob
From Jimmy Olsen #144, which was written and drawn by Jack Kirby as part of his Kirby’s Fourth World series for DC. This introduces the San Diego Five String Mob, which were based on five San Diego Comic fans who worked on Comic-Con. Clockwise from the bottom: Mike Towry (the blond-haired drummer), Roger Freedman, Will Lund, Scott Shaw, and John Pound.

Mike also co-founded San Diego Comic Fest. The next Comic Fest will be February 12-16, 2016. Mike is lining up great guests, including Bryan and Mary Talbot, Mike Royer, and other fantastic speakers. We plan to be there with a very new presentation. Stay tune.

Vampire Servant Liability

By
Josh Gilliland
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Vampires stories often have human servants to do the vampire’s bidding. In What We Do in the Shadows, the vampire Deacon employs his human servant Jackie to iron shirts, schedule night dental appointments, and lure co-eds to be a meal for Deacon and his flat mates. What is Jackie’s liability for Deacon’s feeding off humans?

If this were a normal employment case, the concept of “Respondeat Superior” would hold an employer responsible for the actions of the employee. The term means “let the superior answer.” Black’s Law Dictionary App, 9th Edition.

In California, “a principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such business, and for his willful omission to fulfill the obligations of the principal.” Cal Civ Code § 2338.

This is not a normal employment case between a master and agent. First off, leading people to a final meal of canned spaghetti before being murdered is a crime. Secondly, holding the servant responsible for the master’s actions flips the doctrine of Respondeat Superior.

The vintage language of “master and servant” might define Deacon and Jackie’s relationship, but today it would be called a criminal conspiracy. A conspiracy is when two or more people conspire to commit a crime. Cal Pen Code § 182(a)(1). Planning to drain two human beings of blood would be murder (the unlawful killing of a human being with malice aforethought). Cal Pen Code § 187.

Jackie only led victims to Deacon’s flat and did not actually participate in killing anyone. However, Jackie could be charged for murder, despite NOT personally killing someone. When there is a conspiracy to commit murder, the punishment is the same as committing first-degree murder. See, Cal Pen Code § 182. Moreover, Jackie took multiple overt acts in furtherance of the conspiracy, from finding people to take the vampires’ home, entering the home with the victims, and leaving the property before the victims were killed. All of these actions are overt acts that would subject her to prosecution for murder.

Some vampire servants might argue the insanity defense, claiming that the vampire had the servant under hypnosis to do the vampire’s bidding. This would fail in Jackie’s case, as the housewife acted as a servant in exchange for being turned into a vampire herself at a future date.

As I have made clear in the past, I despise sparkling teenage vampire stories. What We Do in the Shadows is a fun horror-comedy. Check it out.

The Intersection of ESports and the Law

By
Roger Quiles
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On August 22nd and 23rd, Madison Square Garden hosted a sold out crowd of 11,000 sports fans (pictured above) each day.  However, the fans were not present to see the Knicks or Rangers play, but to watch the top two League of Legends teams in North America do battle.  For those that are unaware, League of Legends is a computer game with approximately sixty-seven million players worldwide.  League of Legends is one of several games played competitively for profit, but perhaps has the greatest market share of the competitive gaming industry known as eSports.  By comparison, a game that is gaining on League of Legends’ market share is Counter Strike: Global Offensive, who held a major tournament across the same two days and drew a peak of 1.3 million concurrent viewers online. Yes, video games are now a spectator sport.

The eSports industry has seen exponential growth in the past few years.  Globally, eSports is projected to become a billion dollar industry by 2017, having currently amassed 47.7 million viewers and participants across the United States and Western Europe. However, as the industry develops, the need for eSports-related legal assistance has grown tremendously at every level.  Much like the professional sports industry, eSports touches upon almost every area of law, although some legal fields are particularly prevalent.

Intellectual Property

ESports is rife with intellectual property concerns. As all gameplay and game content is the intellectual property of the developer, licensing issues arise regularly.  Although some developers also act as the governing body of their game’s professional league, there are also independent companies which govern eSports professional leagues and otherwise act as a tournament provider.  Therefore, developers must license their intellectual property to these independent providers in order for them to continue to operate. However, the choice of whether to license the game to certain providers remains at the discretion of the game developer since they own its intellectual property.

Additionally, licensing issues arise with individual players.  With the advent of streaming services such as Twitch.tv, YouTube Gaming, and content creation through YouTube, gamers are relying on licenses from game developers to broadcast gameplay online.  Developers vary wildly on how they choose to license their content to players, which can create conflict.  For instance, Riot Games, the developer of League of Legends, is extremely protective of licensing its game to independent league/tournament bodies, but has a very liberal policy (which it has codified) of allowing players to use the game to stream its content and make YouTube videos.  On the other hand, Nintendo is extremely restrictive with licensing its intellectual property to players.  In fact, Nintendo published a list of games, excluding many of its more popular titles, which players must use to stream or otherwise create content.

Contracts

Leagues, tournament providers, teams, and players all require assistance with the drafting and negotiating of contracts.  Unfortunately, this has been an area of law that the eSports industry, particularly at the team level, has not adopted en masse.  Team owners frequently rely on oral contracts with their players, or resort to creating their player contract by copying sections of various contracts that they find online.  The resulting written contract is frequently a hodge-podge of several different types of contracts resulting in a contradictory, and largely unenforceable, contract.  However, as teams are becoming increasingly business savvy, some teams are beginning to seek legal counsel for contract help.

Players have the greatest need for legal assistance with contracts due to their vulnerable status, despite the fact that the industry’s product rests on their shoulders.  The history of eSports has unfortunately been marred by teams taking advantage of players, particularly by failing to pay them.  In one recent example, a team failed to pay its player for three months and threatened to have the player’s mother evicted should the player leave the team.  Despite these well-known horror stories, the players are young and impressionable, and have knowingly accepted bad contracts as a means of starting their professional career. Additionally, there are teams that discourage players from seeking counsel during their contract negotiation. Although such behavior may be actionable, players fear for their livelihood and largely attempt to negotiate the contracts on their own, or accept them as is.

At all levels of the industry, some of the most readily encountered contracts are player-team contracts, player-league contracts, team-league contracts, and sponsorship agreements.

Mergers and Acquisitions

As the eSports industry is still developing, the teams comprising professional leagues are in a constant state of flux from one season to the next.  Professional leagues have generally allowed teams to sell their spots in the league to other organizations for profit.  These pro league spots are transferred in the same manner as tangible property and fetch high prices due to their scarcity.  Team rosters, and entire organizations, are also acquired and sold by organizations in the same manner. As with any asset purchase, the transaction should be negotiated and formalized into a written purchase agreement by counsel to protect both parties.

Conclusion

The above examples are just a small piece of how the eSports industry touches upon different areas of law.  Despite the eSports industry’s substantial legal needs, there are few attorneys who service the industry.  Surely as the industry becomes more profitable, for both the eSports teams and attorneys involved, more attorneys will flock towards the industry and offer protections for businesses and individuals.  However, the industry must first be aware that it needs such help before it can be accepted.

Thank You for Supporting Us

By
Josh Gilliland
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0

The Geekie Awards is October 15, 2015. Thank you everyone who has voted for us.

The Psychology of Guardians of the Galaxy

By
Josh Gilliland
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0

Janina_ScarletDr. Janina Scarlet, author of Superhero-Therapy, sat down to discuss the psychology of the heroes and villains from Guardians of the Galaxy. Dr. Scarlet discussed the impact of Quill, Gamora, and Nebula with each losing their parents, to Groot being the model of compassion.

Dr. Scarlet also described her work with active duty military service members and veterans with treatment for Post Traumatic Stress Disorder and using comic book characters in their treatment.

We also discussed how much we enjoy Anthony Mackie’s Falcon and thoughts on Captain America Civil War. Dr. Scarlet also shared how the Winter Soldier could be treated for his own psychology injuries.

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