WRITSTHE OFFICIAL PUBLICATION OF THE BUCKS COUNTY BAR ASSOCIATION

theSPRING 2016

An Italian Adventure:

Part 2

Immigration: Fixing a Broken

System

Spring preview of:

Bucks County farmers’ Markets

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President’sMessage

Immigration: Fixing a Broken SystemThe current presidential election has brought to the public’s attention issues of what should be done about the estimated 12 to 15 million undocumented persons currently...

Spring Preview of Bucks County Farmers’ MarketsEven though farm acreage continues to decline in Bucks County, we are fortunate to be blessed with...

An Italian Adventure, Part 2: Florence & PisaThe Flaneur is an urban explorer, a connoisseur of the streets. Anyone can merely walk the avenues...

Eight Generations on the FarmWrits Editor Scott Feldman called a few weeks ago to inform me that the next edition would focus on local Bucks County farmers markets, and since he...

Pennsylvania Dutch Farmer’s Market: Newtown, PennsylvaniaLower Bucks County residents do not have to drive to Lancaster for an authentic Amish culinary experience...

Let’s Get Acquainted, Shall We? It’s a job to look for a job! Lawyers of all ages to need to know interview skills, be they for job interviews, client meetings...

(Re)Defining Copyright Fair UseIn ways the legal world is still struggling to comprehend, the Internet has and continues to play an influential role in defining modern and future copyright law...

contentsSPRING 2016

WRITSTHE OFFICIAL PUBLICATION OF THE BUCKS COUNTY BAR ASSOCIATION

the

CONTACT INFO

PresidentGrace M. Deon

Vice President/President ElectDavid J. Truelove

SecretaryJessica A. Pritchard

TreasurerRobert T. Repko

Editorial StaffScott L. Feldman

Writs CommitteeSusan DardesScott I. Fegley

Dianne C. MageePaul Perlstein

Christopher J. SerpicoDavid J. Truelove

Bar Association OfficeDeanna Mindler,

Executive Director135 East State Street

Doylestown, PA 18901215.348.9413

www.bucksbar.org

email submissions todeannam@bucksbar.org

PUBLISHERHoffmann Publishing Group, Inc.

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610.685.0914 x213 Karen@HoffPubs.com

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The written and visual contents of this magazine are protected by copyright. Reproduction of print or digital articles without written permission from Hoffmann Publishing Group, Inc., and/or the Bucks County Bar Association is forbidden. The placement of paid advertisement does not imply endorsements by Bucks County Bar Association.

Also in This Issue:• Pennsylvania Bar Association Convention Page 13• 2016 Mock Trial Competition Recap Page 18• An Easy Way to Support Legal Aid Page 25• Judge Alan M. Rubenstein Page 26• We Are: BCBF! Page 27• Tech Tips From a Recovering Geek Page 30• Music Snob’s Top 5 List Page 31

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President’s MessageDear BCBA Members:

In just one month my daughter, Aubrey, will have completed her freshman year of college (Ray Bucknell to alums Larry Scheetz and John Trainer and Bison parents Maureen and Chris Serpico). Until this moment I had no idea how much I would miss cheering at field hockey and lacrosse games (even

in rain and frigid temperatures), hosting pasta parties for the team members the night before away games, attending student executive board fundraisers and the list goes on.

Each year I would anxiously await receipt of the lacrosse playoff schedule because inevitably there would be a game slated for the same day as Aubrey’s piano recital. Somehow we would manage to whisk her off of the field and deliver her to the James-Lorah House just in time for her performance. In the audience I would join fellow BCBA members (Michele and Mike Frisbie, Kim Litzke, Jeff Williams and Susan Smith), as we eagerly awaited the performance of the songs our devoted pianists practiced for months up until the big moment.

“for those of you who –– in addition to practicing law –– work with our youth, serve on a municipal or nonprofit board or committee, your time and efforts are meaningful and essential.”

Over the past year, I have viewed the many posts on social media by friends, family and colleagues sharing their treasured mo-ments. I particularly enjoy viewing posts by our BCBA members who are active outside of the court room enjoying the activities of their children and grandchildren, as well as devoting countless hours to community and nonprofit endeavors.

Take for instance my law partner, Kim Litzke, who has for many years coached her daughters’ soccer teams. In addition, she, along with John Shaffer and Tara Brouda, coached her daughter, Alexis, and fellow members of the Central Bucks South Varsity Mock Trial Team. The team catapulted all the way to the state finals, an honor bestowed upon only 14 of the 317 teams that compete throughout the Commonwealth. This bright group of future lawyers also managed to capture first place in the song

parody competition held at the reception. Well done! This is just one example of how our BCBA members balance their busy professional and personal lives while giving back to our commu-nity. Many thanks also to Breandan Nemac and Emma Kline for organizing yet another successful mock trial competition.

For those of you who – in addition to practicing law – work with our youth, serve on a municipal or nonprofit board or commit-tee, your time and efforts are meaningful and essential. The BCBA wants to hear about your activities in the community so that we can highlight and acknowledge the efforts of our mem-bers. So please take the time, if you have not already done so, to let me know about your participation in such worthy causes.

In addition to the many CLEs and meetings of our divisions, sec-tions and committees, please note the following happenings at the BCBA in the upcoming months:

•Visit by the Commonwealth Court BenchtoDoylestownwhereaselectappellatepanelwillsitattheJusticeCenteronMay13that9:00a.m.followedbyanAppellateLaw-basedCLEpresentationattheBCBABuildingfrom1:00-2:00p.m.

• Federal Courts Reception–June8,2016

•BCBA Annual Senior vs. Young Lawyers Softball game–June16,2016

•Bucks County Bar Foundation Golf OutingatJerichoNational–June27,2016

• Formal dedication of the refurbished fountainattheBCBAbuilding,thatwasoriginallyerectedintheearly1870sintheeastyardofthe1812Courthouse(summerdate,yettobedetermined)

•The Bench Bar Committee,co-chairedbySeanGreshandDanKeane,ishardatworkplanningagreatconferenceforourmemberswhichwillbeheldatCrystalSpringsonSeptem-ber23-25,2016.MusicalentertainmentonFridayeveningwillfeatureaspecialgroupoflocaljurists.

Should you have any questions about BCBA activities or have any new ideas that would benefit our members, I invite you to contact me.

I wish you and your families a restful and safe summer.

Thanks for your interest in theWRITS. Please send all comments, questions, submissions to: BCBAWrits@yahoo.com.

We Welcome Your Feedback!

GraceDeonBucksCountyBarAssociationPresident

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Going back even further, TheThinBlueLine was a 1988 award-winning theatrical release that told the true story of a Dallas police officer’s violent murder in 1976 and the subse-quent rush to judgment resulting in the wrongful conviction of 28-year-old Randall Adams. Mr. Adams was clearly in the wrong place at the wrong time, having accepted a ride from the actual murderer (in a stolen car) after his own car ran out of gas. The filmmaker’s extensive research and investigation ultimately led to Mr. Adams’ release in 1989.

So MakingaMurderer had some tough acts to follow. But even as Messrs. Avery and Dassey remain in prison, others have clearly benefitted. Steven Avery’s new attorney, Kath-leen Zellner, while aggressively pursuing all legal avenues, is hardly press-shy. She has granted numerous interviews, with some occasional controversy. Newsweek magazine suggests that Jessica Biel could play her in a movie. And Strang and Buiting have added a series of European dates to their speaking tour. In addition, Dean Strang will host his own “docuseries,” in which he will “point out flaws in America’s criminal justice system.”

And, yes, there will almost certainly be a second documen-tary about the Avery/Dassey case and its ongoing develop-

ments. In which case, I will be right there watching!

-Scott L. Feldman

From the Editor...A hopeful project by wannabe documentarians, one of whom was a lawyer, became a ten-hour series, which became the latest Netflix binge watch phenomenon, which be-came its own cottage industry.

MakingaMurderer tells the stranger than fiction story of Ste-phen Avery, who was convicted

of a brutal assault he did not commit. He was fully exoner-ated after serving eighteen years in prison. Within two years of his release, however, he, along with his then-16-year-old nephew, Brendan Dassey, were charged – and convicted – of a murder for which he again asserts his innocence.

Among the bad guys in this retelling are the Manitowic County, Michigan District Attorney’s office and Sheriff’s De-partment. Among the good guys are Avery’s defense lawyers, Dean Strang and Jerry Buiting, who are currently in the midst of a 26-city, 32-night speaking tour entitled “A Conversation on Justice.” Locally, tickets for each of their two nights at the Keswick Theater (night one sold out!) ranged from $39.50 to $59.50.

I have always been a sucker for a good true crime story. Just last year, the riveting multi-part documentary TheJinx:TheLifeandDeathsofRobertDurst debuted on HBO. Mr. Durst’s saga continues to unfold, with his next murder trial sched-uled shortly in Los Angeles. Perhaps the most compelling ef-fort – prior to MaM – is the documentary regarding the 1993 “West Memphis Three” murders, ParadiseLost:TheChildMurdersatRobinHoodHills. This 1996 documentary also originally debuted on HBO and spawned two sequels. By the time of its third iteration in 2011, the three defendants were released from prison after 17 years owing to widespread sup-port generated from the series. Advocates included Johnny Depp, Eddie Vedder, and Peter Jackson. The documentarians raised numerous questions as to the evidence and motives of the prosecution, not least of which was its decision to por-tray Defendant Damien Echols (18 at the time of his arrest, with some interest in the Wicca religion), as being a “devil worshipper.” The series was a unique blend of investigative reporting, advocacy and social justice, a blueprint later fol-lowed by MaM.

Need a Lawyer?Welcome to the Bucks County Bar Association’s Law-yer Referral and Information Service (LRIS) serving all of Bucks County. The LRIS is a public service of the non-profit Bucks County Bar Association. Each year the LRIS responds to thousands of callers, referring them to attorneys with experience in the appropriate area of law or to area agencies able to provide assistance.

Persons identified as needing legal representation and who do not claim inability to pay an attorney will be re-ferred by LRIS to a participating attorney. LRIS partici-pation is open to all Bucks County Bar Association members having their primary office in Bucks County. You can contact the LRIS at 215-348-9413.

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Fixing a Broken System...

– By – Marcia Binder

Ibrahim

The current presidential election has brought to the public’s at-tention issues of what should be done about the estimated 12 to 15 million undocumented persons currently living in the United States. These people are your neighbors, friends, your children’s playmates, and the owners of your favorite restaurants, dry cleaners and other establishments. They are intimately and inte-grally involved in our daily lives. In Pennsylvania alone there are estimated to be approximately 180,000 undocumented persons.

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ecause of a 1997 law passed as part of the Illegal Immigration Reform and Immigrant Responsibil-ity Act (IIRIRA), still in effect today, millions of undocumented persons are stuck in this country

and face disincentives to depart and attempt to reenter law-fully. That is because under IIRIRA undocumented persons risk being barred from returning to the United States for three or ten years as a sanction for their original unlawful entry. Now millions of undocumented persons with United States citizen families, who would otherwise be eligible for lawful visas to the United States, risk the imposition of the bar if they attempt to return home to secure those visas. When I started practic-ing immigration law thirty-five years ago, this law did not exist, and undocumented persons could freely travel back to their home coun-tries and apply for visas to return legally and join their families, thus taking them out of the shadows. The result of the passage of IIRIRA has been a large and growing population of undocumented persons who have resided in the United States for extended periods of time without an opportunity to become documented, and without an incentive to return to their home country.

Due to the previous laxity of our border policy these undocumented persons often have United States citizen children, spouses, and families, emotionally and financially dependent upon them. Often, undocumented persons are the main or even the sole breadwinner in their family, allowing a United States citizen spouse to remain home and care for the couple’s chil-dren. The income earned by an undoc-umented individual could mean the difference between a family’s self-reliance, and partial or full dependence upon governmental welfare programs. Despite having lived in the United States for many years with their United States citizen relatives, many undocumented persons are forced to stay here and await immigration reform (per-haps never to occur) to legalize their status because of the IIRIRA three and ten year bars. Most undocumented people are law abiding, hardworking individuals, who are now stuck in the United States because they may have entered without documentation or even overstayed their period of authorized time, thus forcing them to stay in an undocumented status. Congress has not yet figured out a sustainable fix for this im-migration morass.

President Obama has employed executive action during his presidency in an attempt to reform immigration, but his poli-cies have been unable to fundamentally change the immigra-tion landscape as the litigation over his attempt to expand existing programs demonstrates. In June 2012, President Obama implemented Deferred Action for Childhood Arrivals (DACA), which offered work permits to certain undocument-ed youth and young adults. These are the so-called “Dream-ers.” In March 2013, President Obama also enacted the provisional unlawful presence waiver program through ex-ecutive action. This process provides relief to a small number of undocumented persons who are unlawfully present in the United States, usually because they entered without docu-

mentation. If they are able to show that a three or ten year bar to their reentry would cause extreme hardship to their United States citizen spouse or parent, they can apply for a waiver of the bar. However, the “extreme hard-ship” threshold is difficult to meet, and the relief is not available for those undocumented persons not married to United States citizens but who have United States citizen children. Both of these executive action policies are in jeopardy, depending upon who is elected as the next President.

The 12 to 15 million undocumented people already present in the United States pose both a challenge and an opportunity. Many states, dismayed by the growing numbers of undocu-mented persons within their borders, have enacted legislation denying driver’s licenses to anyone who can-not prove they are in the country legally. Pennsylvania has enacted such

a policy. Though perhaps reasonable in theory, the conse-quence has not been a decrease in undocumented persons driving, but an increase in uninsured and unlicensed drivers in Pennsylvania. Undocumented persons have difficulty secur-ing insurance because of their lack of status, thus leading to more uninsured motor vehicles and drivers on our roadways. Undocumented taxpayers contributed $11.84 billion in taxes in 2012 alone and, contrary to popular myth, around half of undocumented persons pay federal income taxes1

Most of these 12 to 15 million persons want to become documented, legal and productive members of our society. If that is accomplished, they will become taxpayers contribut-

“The 12 to 15 mil-lion undocumented people already pres-

ent in the United States pose both a challenge and an

opportunity.”

B

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their status that would enrich the de-pleted coffers of our federal government. Further, our failure to provide a legal pathway to normalized status means that undocumented persons remain in the shadows, and those persons with criminal or security issues are less easily identi-fied and present more of a danger to our society as a whole.

Many in Congress, like many Americans, fundamentally disagree with “rewarding” those who broke our laws by entering and crossing our borders unlawfully. But unless and until significant reform is achieved, the 12 to 15 million undocu-mented persons who live and work in your community will increase to millions more, trapped, unable to leave and un-able to legally come out of the shadows. This would constitute a massive failure by our elected representatives to solve one of the great problems of this generation.

ing to both the Social Security fund and the Treasury of the United States through the payment of income, em-ployment and other types of taxes. They will become eligible to buy health insurance through the mar-ketplace, thus decreasing their reli-ance on emergency rooms and other expensive medical interventions.

Despite rhetoric from some presi-dential candidates to the contrary, it is obvious that large scale de-portation of such a vast number of people is not feasible. Many Americans, conscious of their own immigrant roots, and mindful of our nation’s praiseworthy history of welcoming immigrants, do not support mass deportation. Rather, as a nation of laws, committed to just and fair treatment of immi-grants, most Americans would like to see the current immigration laws reformed. According to the Public Religion Research Institute’s 2015 American Values Atlas, nearly four out of five Americans sup-port policies that would allow undocumented immigrants to remain in the United States.

It is estimated that legalizing these 12 to 15 million people would result in an increase in Gross Domestic Product (GDP) between the years 2013 and 2020 of $832 billion. Penn-sylvania specifically would add $12,349 per undocumented immigrant to the Gross State Product (GSP) by 2020, and by 2045, would add $6.4 billion to the GSP and increase personal income by more than $6.3 billion.2 In addition, a penalty fee could be charged to anyone seeking to legalize

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“Many Americans, conscious of their

own immigrant roots, and mindful of our nation’s history of welcoming immi-

grants, do not support mass deportation.”

Footnotes

1Gardner, Matthew, Johnson, Sebastian, and Wiehe, Meg. “Un-documented Immigrants’ State and Local Tax Contributions,” April 2015. Institute on Taxation and Economic Policy, www.itep.org.2Economic Effects of Key Components of Immigration Reform: Pathway to Legal Status in Pennsylvania.” www.remi.com/immi-gration-report

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Spring previewof Bucks County

farmers’ Markets

community

Even though farm acreage continues to decline in Bucks County, we are fortunate

to be blessed with an abundance and ever-increasing number of outdoor farmers’ markets offering healthy, locally raised products. Sadly, however, none of those

markets opened for the 2016 season before the deadline for this issue of The Writs...

– By – Diane Magee

C O U N T YB U C k S

PA

MArketsFA R M E R S ’

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Spring previewof Bucks County

farmers’ Markets

In anticipation of opportunities to visit these markets in warmer weather, here’s some preliminary information gleaned from the Internet and the cobwebs of my mind to help you find and explore the markets when they do open. I discovered the following eight community markets in Bucks County (and note that there are many more in neighboring counties and across the river in New Jersey):

1.The Doylestown Farmers’ Market has been sponsored by the Buckingham Township Civic Associa-tion since 1975 and operates this year each Saturday, with the exception of the weekend of the Doylestown Arts Festival, from April 16 to mid-November from 7:00 a.m. to noon. It’s located on Hamilton Street, between State Street and Oakland Avenue and packs over 35 vendors into that relatively small space. You may treat yourself to tantalizing baked goods, homemade jams, local beef, chicken, eggs and cheese, plants, both vegetables and flowering annuals, for your garden, and treats for your pets. As a customer and stroller of this market for many years, I can personally vouch for the quality of the local honey, pepper jelly, and a vast array of budding plants. Plus, it’s a great way to spend Saturday morning with your friends and neighbors. I’ve always run into someone I know each of the many times I’ve visited the market.

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2.Indian Valley Farmers Market at The Marketplace at Telford Station, Penn Avenue and Main Street in Telford may or may not be in Bucks County since Telford Borough is divided between Bucks and Montgomery Counties, and I haven’t checked its location to the county border. Either way, it’s close enough to include here. This market is a Produc-er Only market, meaning that only the grower, baker or crafter may offer products for sale. It’s open on Saturdays from 8:30 a.m. to 12:30 p.m. from June through October and features hand-made crafts, free kids’ crafts, local, farm fresh food, baked goods, local honey, and coffee. Among other vendors, Jaye’s Barkery, and Brewscuits sound interesting.

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C O U N T YB U C k S

PA

MArketsFA R M E R S ’4.

5.Perkasie Farmers’ Market, opens on Saturday mornings, from 9:00 to noon, beginning June 4 and run-ning until October, at the corner of 7th and Market Streets. Warning: major construction is taking place in this area this year, as Perkasie Borough strives to transform its downtown into a modern village, but the website claims that the market will be here nonetheless. Although it has not yet opened this year, this market was the 2016 winner in the Farmers Market category of Bucks Happening magazine’s “Best in Bucks” contest. You may buy certified organic produce, eggs, meat, honey, breads, coffee, sweet treats, flowers, plants, and crafts at this market.

Lower Makefield Farmers’ Market is another weekday market, opening in May every Thursday from 3:30 to 6:30 p.m. It was founded in 2007 and takes place in Veterans Square Park at Edgewood and Heacock Roads. It’s populated with farmers, food trucks and other unique vendors, such as Giggling Goat Diary, Mediterranean Delicacies, Two Sisters Canning, Pickle Licious, and Neil’s Sharpening Service.

3.Langhorne Farmers Market, found at the Jesse Soby American Legion Post, 115 West Richardson Av-enue in Langhorne, operates rain or shine every other Tues-day afternoon, starting June 2, from 3:00 to 6:30. Offerings at this market include fresh local produce (of course), organic coffee, soaps, fresh bread and cookies, jams and preserves, and, for something different, tomato pies.

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E ven as I approached the front door on a recent visit, won-derful odors of baking breads and roasting meats rushed out to greet me. The market is arranged in the traditional

shape of a large rectangle with shops on both sides of a central aisle. The market features shops with traditional Pennsylvania Dutch fare, a deli with choice cuts of meats, sausage and poultry, shops with dairy and cheese products, fresh fruits and vegetables, and a shop offer-ing specialty homemade sauces and relishes. I was also pleasantly surprised to see shops offering foods I do not usually associate with “Pennsylvania Dutch.” There is a sushi bar, a Mexican deli, and a seafood shop with filets so fresh they must have been flown in from the docks that morning. There is seating in two different areas of the market for those who don’t want to wait until they get home or back to the office to savor the taste of exceptional food.

Since I went there to experience Pennsylvania Dutch foods, I tried a barbecued pork sandwich with glazed carrots. They went down nicely with birch beer. The pork sauce was on the sweet side, not overpowering. I finished my lunch with some shoo-fly pie and bought a bag of cherry licorice bites to go.

The Farmer’s Market is open only on Thursdays from 9 to 6, Fridays 9 to 7 and Saturdays 9 to 4. The Market also has pig roasts in the park-ing lot during the summer. Newtown has much to offer in the way of shopping and things to do in addition to the Farmer’s Market. But if you’re going to spend a Saturday in Newtown, be sure to stop by the Pennsylvania Dutch Farmer’s Market to eat in or take out some culinary treasures your entire family will enjoy.

For more information on the Pennsylvania Dutch Farmers Market in Newtown, Pennsylvania, visit them on the web at www.newtown-farmersmarket.com.

Lower Bucks County residents do not have to drive to Lancaster for an authentic Amish culinary experience. The Pennsylvania Dutch Farmer’s Market located in the Village at Newtown South, 2150 South Eagle Road, in Newtown, PA is a delight for the senses.

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pennsylvania Dutch farmer’s

Market:newtown, pennSylvania

– By – Scott Fegley

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P e n n s y l v a n i aBar association

C o n v e n t i o n

BCBA events

The Bucks County Mediation and Arbitration Center (BCMAC) is owned and operated by Barbara N. Lyons, Esq. She is certified, skilled and experienced in neutral arbitration, mediation and case evaluation. Attorneys work closely with Barbara from initial contact to the conclusion of their case.

BCMAC is a full-service ADR provider addressing issues involving, but not limited to:

• Contract and real estate disputes

• Medical malpractice

• Equity matters

• Employer/employee disputes

• Underinsured and uninsured motorist cases

• Business mergers and dissolutions

• Personal injury

• Municipal matters

BCMAC provides cost-effective and real-world solutions to attorneys, consumers, business and industry professionals, employees, employers and government agencies.

For more information, call (215) 340-7655

or visit www.bcmac.org.

Bucks County Mediation and Arbitration Center

The Farm, 220 Farm Lane, Doylestown, PA 18901

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The Flaneur is an urban explorer, a connoisseur of the streets. Anyone can merely walk the avenues and boulevards of an urban landscape. But flanerie has been described by Honre’ de Balzac as “gastronomy of the eye.” To Victor Fournel, it is “a unique way of understanding the rich variety of the city land-scape. It is a moving photograph of the urban experience.” The great French poet Charles Baudelaire likened the Flaneur to “a botanist of the sidewalk.” And in our own culture Cornelia Otis Skinner has described the Flaneur as the “deliberately aimless pedestrian, unencumbered by any obligation or sense of urgency…[who] wastes nothing, including his time, which he spends with the leisurely discrimination of the gourmet, savoring the multiple layers of the city.”

To our mutual delight, on our first trip together many years ago, my wife and I discovered that we both felt that flanerie was the best way to see and experi-ence a city. Each urban environment has its own current, and once found it will sweep the Flaneur to the hidden flora and fauna that will delight all of the senses, with stops at the pools, banks and coves that can never otherwise be discovered. This is how we have enjoyed many urban landscapes, including Venezia. And now it was time to flanerie in Firenze.

an italian adventurePart 2: Florence & Pisa

– By – Paul Perlstein

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/ The Leaning Tower of Pisa and Cathedral.

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We had been to Florence twice before on day trips and found it beautiful and great fun. This time we were going to spend a week in a luxury flat, the prize we won that brought us to Italy. Unfortunately, we didn’t drop our over-packed bags in the Venetian canals and so we dragged them to where we could get the waterbus to the train station. After man (and woman) handling our suitcases on and off the vaporetto, into the train station and onto our car where hav-ing booked first class paid off with room for the bags on the crowded train, we relaxed and enjoyed the two hours or so through the Tuscan countryside to Florence.

When we arrived in Flor-ence, the weather was even more glorious than we had experienced in Venice. Showing the cabdriver a piece of paper with the address of our apartment, he knew exactly where to go. The palazzo where we were staying was around the corner from the Piazza Santa Croce, not far from the station. Nonetheless, any cab ride in Italy is an experi-ence that should require crash helmets: fast turns down very narrow streets, sudden brak-ing for pedestrians and cars that appear from nowhere, frequent stops at which one expects knives or guns to come out to avenge the honor of our driver who felt himself insulted by every one who made him brake.

On a tiny street we found a huge solid door with the building number next to it. A call to the landlady brought her down and she ushered us inside. The entryway was sleek and modern. The lift was too small for all three of us with our bags. Since the apartment was only one flight up a wide circular marble staircase, I gallantly let Mrs. P get on the el-evator while I foolishly decided to drag my bag up the stairs. Half a heart attack later, I met them. The landlady opened the door and we entered the most visually stunning resi-

dence either of us had ever seen. ArchitecturalDigest would have been impressed. A masterwork of Italian design, it beautifully blended modernity and antiquity. The floors were marble and wood. The walls were stuccoed and painted. The ceilings had murals on them. The artwork was both classi-cal and modern. There were two bathrooms, a living room, an office/sitting room, a large eat-in kitchen with a pretty balcony that overlooked a charming courtyard, and a huge bedroom. Needless to say, we spent the next seven days in absolute comfort.

Being experienced with apartment rentals in foreign cities, we quickly made ourselves at home by finding the

local market and stocking up on staples such as eggs, coffee, and cream. I came back each morning from getting bread and pastries to my wife’s wonderful coffee and breakfast. But we were here to flanerie in Florence and that we did, all day and well into the evenings.

The art in Florence is so abundant and so moving that it is im-possible to believe that man created it. At the

/ The terrace of the apartment.

/ Boboli Gardens in Florence.

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Academia, Michelangelo’s David is the most wondrous thing, beyond imagination. We can stare at it for hours, sometimes breathless, sometimes crying. In the Uffizi gallery one can spend a day, a week, or a lifetime. There one takes in the beauty of Titian’s Venus, Botticelli’s BirthofVenus, da Vinci’s Annunciation, and literally thousands more works of art that are just as spectacular. And this is just one of many muse-ums. I refer you to the guidebooks to learn what we saw and you have to look forward to.

Florence is very compact. It is easy to walk from the Piazza Santa Croce to the Uffizi, the Duomo, the Academia, the Leonardo Museum, the Galileo Museum, the Strozzi Palace and the Ponte Vecchio. The streets of Florence teem with an abundant palette of humanity. The street performers on the Ponte Vecchio never fail to entertain, as does the window shopping of the gold merchants whose stores flank each side of the bridge. Across the Ponte Vecchio one can walk to the Boboli Gardens and the Pitti Palace. It was across from here that we discovered a salon whose

proprietor was so talented that he made us wish we could regularly return. Great hair days lasted us the remainder of our trip, and beyond.

Florence has an abundance of art and gold and there is shopping everywhere, especially for leather goods. Indeed, after settling in our apartment, the first thing my wife did was go shopping for a new leather jacket. Finding things she liked was not hard. She bought two. Fret not for me, how-ever. I, too, came home with some very stylish things that were unique. While corporate retailers are as abundant in

Florence as they are in the King of Prussia mall, there are still dozens of local artisans and small shop owners who have one-off items that will never be seen any-where else.

Florence is located in the heart of the Tuscan breadbas-ket and the food is excellent. Highlights are the sandwiches, ubiquitous pizza, and the meat and cheeses and olives that make for great picnic lunches. For dinner, bisteccafiorentina is a huge thick T-bone never less than a kilo (2.2 lbs) served very rare. No one, not even the fattest

tourist, eats it by himself. And always get the vino del casa. It is cheaper than the other wines on the list

and we have never been disappointed. Florence has a huge students abroad population and there is an abundance of good cheap international cuisine restaurants that cater to them. One of our gastronomic highlights was just such a place, El Chico. Here we enjoyed one of the best burritos we ever ate. We dined al fresco, sharing a table with stu-dents from all over the world. They were incredibly inter-

esting dinner companions. We never ate so much for so little. But there we stick with the beers

and don’t order the wine.

/ The apartment.

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but also a fun, pleasant walk. Shops abound. And then, suddenly, seen above the rooftops and through the canyons of the streets, there it is – the tower! The cathedral-baptistery-tower complex of Piazza del Duomo, known collectively as the Piazza dei Miracoli (Square of Miracles,) is not only one of the most dramatic settings in Italy, it was to us the second (after the Eifel Tower) most iconic monument we had ever seen. We are glad that we lingered at length, enjoying a cappuccino and biscotti as we absorbed the sheer wonderfulness of it all.

Florence and its Tuscan environs can easily encompass an entire trip to Italy and whether you stay a few days or a few weeks, it’s not enough. But at the end of seven days our Florentine idyll came to an end and Rome awaited.

/ The Piazza dei Miracole./ The apartment.

When in Florence, one cannot miss Pisa and we didn’t. Getting there was easy. Unencumbered by suitcases, we could walk to the train station and used the ticket machines to get discount first class tickets. Once ar-rived in Pisa, the tower is only a few kilometers from the train station and like most everywhere in Italy, is not only an easy

SPRING 201617

community

Following the preliminary round, there were four undefeated teams which advanced to the playoff stage: Central Bucks South Team 1, Central Bucks East, Central Bucks South Team 2, and Central Bucks West. Congratulations to the Central Bucks School District and the performance of all four teams entered in this year’s competition – whatever you put in the water system this year certainly worked! Following the final which was presided over by The Honorable Cynthia M. Rufe, District Judge for the United States District Court for the Eastern District of Pennsylvania, the jury returned a verdict in favor of the Defendant, Central Bucks South Team 1. The Plaintiff, Central Bucks South Team 2, was narrowly defeated after a well argued trial.

I am proud to report that our local winner then went on to prevail at the Regional Competition which was held in March. Central Bucks South earned the right to compete in the statewide competition held in Harrisburg in April. The team continued to make the County proud by going 1-1 in Harrisburg, with the loss being a very narrow defeat to the eventual repeating state championship team, Quigley Catholic High School of Beaver County.

On behalf of our county’s Young Lawyer’s Division, I would like to thank all of the Judges and attorneys (serving as jurors and bailiffs) who volunteered precious evenings to make the competition the most fulfilling it can be for the students. The competition would not otherwise be possible. I would also like to thank Sherri Wohrle, Chris Daley and everyone else at the Justice Center that made it possible for the competition to be held in the new courthouse this year.

Congratulations again to all of the students, teacher-coaches, and attorney advisors who participated in the competition this year. The future of the Bucks County Bar certainly looks promising with all of the young students interested in the law!

The 2015-2016 State Mock Trial Competition recently concluded and was a great success! The competition, which is organized each year by the Young Lawyers Division of the Pennsylvania Bar Association, was held the last several months culminating in the state competition held in Harris-burg the weekend of April 1st-3rd.

The competition began locally at the district level in which thirteen Bucks County high school and middle school teams competed. Each school competed in two trials, alternately representing the Plaintiff and Defendant, in a civil declara-tory action filed by an insurance company against its insured following the settlement of a personal injury claim brought by a 3rd party. The students did an incredible job with an extremely difficult fact pattern that would have been compli-cated even for a seasoned trial attorney!

2016 Mock Trial Competition

Recap– By Breandan Q. Nemec –

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BCBA events

BCBA Opening

- of - Assizes

1.

2.

3.

1. BCBA Members enjoying the evening.

2. CLE, presented by the Bucks County Court of Common Plea Judges.

3. BCBA President Grace Deon with “Frankie.”

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eight generationS -on the-

farM

Writs Editor Scott Feldman called a few weeks ago to inform me that the next edition would focus on local Bucks County farmers markets, and since he recently learned that I lived on a farm, he asked if I would be interested in writ-ing an article about my life as a “gentleman farmer.” While many would question whether I meet the definition of a “gentleman,” I am absolutely certain that I do not meet the IRS definition of a “farmer.” However, that was not the case on both sides of my family just two generations ago, so let me tell you the tale of one country lawyer’s family farm and heritage.

The Trauger (Dracker in Germany) and Hunsberger (Hun-sperger in Switzerland ) families each managed to make their way across the Atlantic to Upper Bucks County in the early to mid-1700s. Both families likely came here as a result of Pennsylvania’s efforts to actively recruit farmers from Europe to come and help grow and expand the Commonwealth’s fledgling agrarian economy. Our family farm, which is now my home and residence, was originally acquired by my mother’s side of the family in 1798 for the stated deed sum of “1000 pounds.” In 2001, my family and I moved to the farm in Plumstead Township and became the 8th generation to reside following only the 5th deed transfer over that period.

The current house on my farm was built with brick in 1888 and replaced the original fieldstone resi-dence. (I am told brick was a status symbol at that time.) According to my grandfather’s records, the brick was made at a local brickworks in Doylestown and delivered by many horse and wagon trips to our property, which is five miles north in Plum-stead. The masons who built the house were from the Souderton area, and they would travel each week to work on the farmhouse while sleeping weeknights in the barn, which was built earlier in 1873. They then returned home by horse for the weekend with their families.

“The farmhouse, like many built at that time, was a multigeneration-al housing structure hous-ing two generations of fam-ily members that lived and worked together on the farm.”

feature

– By – Jeffrey G. Trauger

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The farmhouse, like many built at that time, was a multi-generational housing structure housing two generations of family members that lived and worked together on the farm. Over the years, the barn also had several additions. Barn experts can tell the nationalities of the early farmers of Bucks County just by looking at the manner of construction. Ex-perts identify ours as a Germanic bank barn with hand hewn timber framing techniques and construction design unique to southern Germany.

Regarding “good deeds,” when our family moved back to the farm, my grandmother handed me a box that she kept in her safe. In it were most of the original deeds to the prop-erty including those that predated 1798. After doing some research, I learned that in the pre-recording era, when a property was transferred, the grantor would provide all deeds to the grantee who would retain those deeds thereby prov-ing their ownership through the chain of title. Some of those original deeds were done on sheepskin with red wax seals accompanying the grantor’s signatures and were also signed and witnessed by the local justice. Two of these deeds, 1774 and 1776, were particularly beautiful due to the artistry of the scriveners with nothing more than black ink. I had them framed and placed under protective glass, and they are now on display in our farmhouse. The deeds show that my ances-tors were neighbors to the Doan family, infamous Bucks County outlaws. For those that do not know, the Doans were Tories and horse thieves; their largest heist was a robbery of the gold from the Bucks County treasury.

From 1909 through 1959 the farm operation was focused on the breeding of Holstein-Freisians (the black and white cows for you town dwellers ). While my great grand-father, Harvey Hunsberger, was attending to various outside interests (Eastern States feed dealer and Sheriff of Bucks County) my grandfather, George, worked on the farm with his older brother, Willis, and helped develop the herd, dairy, and breeding businesses. The farm became known as Belle Crest farm, and this name served as the prefix for all cows and bulls bred and sold throughout the country as the breeders registered their animals with the National Association. Belle Crest farm also bred a number of state champion cows that produced many more pounds of milk with a higher butterfat content than their contemporaries. A 1941 article from the Intelligencer was titled “Belle Crest Farm Cows Sold at Fancy Prices“and confirmed the sale of a herd sire bull named “Dean of the Pearls” for the then-record sum of $2,100. The Belle Crest breeding business ended, however, with the advent of AI (not “intelligence” but instead “insemination”). During this time period, my grandfather also had a huckster route to the Main Line and other areas – selling farm fresh milk, meats, and other dairy products to the city and town folk.

“As a boy, I was fortunate to grow up next to the farm and spend much time there.”

SPRING 201621

While both of my grandfathers grew up working on their family farms, my parents’ generation left farming as their livelihoods. Belle Crest farm is now farmed by a local dairy farmer in Bed-minster who raises feed crops of primarily corn and soybeans to reduce his winter feed costs for his herd of approximately 80 -100 dairy cows. As a boy, I was fortunate to grow up next to the farm and spend much time there climbing the silo, build-ing tunnels in the hay stored in the barn, and hunting in the adjacent woods with my father. I may be one of the few BCBA members that has driven a large tractor pulling a disc harrow to prepare a field for planting, driven a smaller tractor raking dried hay for later bailing, or has ridden along in the cab of a com-bine while harvesting soybeans or corn. Another fact, both my mother and myself have only ever had Thanksgiving dinner at the farm. Thanks to my wife, Colleen, that tradition has contin-ued, and hopefully it will continue long into the future.

“I am proud of our families’ Bucks County farming heri-tage, and it now falls to me and my family to uphold the tradition of being good stewards of the land and our family homestead.”There is nothing quite like the peace and solitude of the farm, especially on a moonlit night or a snowy day. I enjoy the seasonal smells of freshly tilled soil and watching the crops grow following planting. Harvest time in the fall is also a yearly event that marks the passing of time and the seasons at our farm. The open spaces, which are preserved thanks to the Bucks County Agricultural Land Preservation Program, are home to deer, tur-key, fox, hawks, and other of God’s creatures that we frequently observe at dusk and dawn. As you may be able to tell, I am proud of our families’ Bucks County farming heritage, and it now falls to me and my family to uphold the tradition of being good stewards of the land and our family homestead.

So please support our local farmers by buying their products directly, and remember, in Bucks County: “There’s No Culture Like Agriculture.”

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• September 22, 23, 24; 2016

• Grand CaSCade LodGe

• HamburG, new JerSey

• buCkS County bar aSSoCiation

Save the Date!

2016 annual

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SPRING 201623

Let’s Get Acquainted, Shall We?It’s a job to look for a job!– By Susan E. Dardes –

Lawyers of all ages to need to know interview skills, be they for job interviews, client meetings, discussions with colleagues and of course, presentations to the Bench. So, the traditional job interview skills – of which I am thoroughly familiar – come in quite handy in all of those situations. I’ll try and impart some personal advice from my recent job search. Kudos the members of our Bar who helped me in this search with encouragement, leads and references. Thank you.

First, the all important, networking. Even if you know just one attorney well enough to ask him or her for an assist, that’s fine. It’s a start. Give them a call. We rely way too much (I think) on the all pervasive email and texting world, and let’s be honest, it’s easier to duck and dodge an email than a telephone call. Of course, if you’re me, you will call and then follow up with a “sorry I missed you” email. Shame on any of you who don’t return a fellow attorney’s call. That’s just wrong.

Keep at it; it takes time. Let the referring attorney or whom-ever know that you made the connection with their connection. People appreciate that.

So one connection will lead to another and if you let every-one know you are looking (for a job or a referral for work, or a recommendation for a new hire, whatever it might be), then the interviews will happen.

Be prepared. Come with your resume for the job, your briefs and back up memorandums for Court and please bring the cor-rect attitude. Attitude bleeds out more than competence, I have found out the hard way. If it’s not there, you’re not there.

Be on time and be dressed for the part. I know this sounds obvi-ous but I have seen people fail on both of these counts. Really? Good grief. The first is just plain manners and the second is just plain sense.

Handshakes and smiles. Good posture. What mom told you still applies. Lucky for me, I have a firm handshake and a lot of dentition.

Keep up your LinkedIn Profile and check it! It is amazing at how many folks don’t realize (myself included) at who has moved where, who is looking to hire, and who is in need of work—they just aren’t looking at LinkedIn. A couple of minutes each week may be enough to keep you up to speed on your connections. Then, see who they may know and how that may help you gain an introduction for a job interview.

Say thank you. Here we go again, back to basics. I remain fasci-nated at how few people actually do this, either at the end of an interview, arbitration, mediation or Court proceeding. Thank the person for their time. They didn’t have to indulge your presence, after all. And for those in job interviews, at the very least, follow up with an email thank you to absolutely everyone who was in the interview room, not just the managers. I am so old school that I have sent hand written “thank you’s” to some interviewers. It made me stand out from others, because so few make the effort, I am guessing.

And if you are the interviewer? Much of the same pro-nouncements apply. Please be on time, please return calls and emails. Give feedback where and when you can.

And if you are asked to help with a referral but no one comes to mind or you don’t think you have any advice to impart? Don’t have a coffee or lunch with someone just to have a free coffee or lunch and then tell them you have nothing to share. It’s also hard to believe that regardless of our area of expertise, an attorney doesn’t know someone in the searcher’s area of practice. Keep thinking. It sounds cliché, but everyone knows someone.

Remember that the search is only temporary. Thankfully. It was a long slog, but I found a job and it was from my connections at the Bar Association…. To whom I remain grateful.

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An Easy Way to Support Legal Aid:The Bucks County Arbitration Fee Donation Program – By Barbara Overholser, Communications Manager, Legal Aid of Southeastern Pennsylvania –

More than a decade after it was es-tablished, the Bucks County arbi-tration fee donation program is a growing source of sup-port for Legal Aid of Southeastern Pennsylvania. And with federal funding cuts and constrained budgets for Legal Aid programs, every opportunity for fund develop-ment is critical. Bucks County is one of only two Philadelphia suburban counties that offer this easy, yet important, way to support Legal Aid. With the completion of a simple form, all or part of the fee which attorneys earn for serving on a Court of Common Pleas arbitration panel can be donated to LASP.

LASP Board Member Dean Arthur, Esq., has participated in the program since its inception, donating all of his arbitration fees to the organization. “I just think it makes perfect sense,” he says. Mr. Arthur is such an ardent supporter of the program that when he’s assigned an arbitration date for which he’s not available, he’ll call the Court Administrator and ask them to reassign to someone else who donates their fees to LASP.

138 Bucks County attorneys currently participate, and thou-sands of dollars have been donated to LASP since the program began. These dollars go directly to providing legal services for indigent residents of Bucks County.

When you volunteer as an arbitrator you will receive a letter introducing you to the program. All you have to do is fill out the provided form to indicate that you wish to donate some or all of your fee to Legal Aid of Southeastern Pennsylvania.

Donated arbitration fees are tax deductible to the extent al-lowed by law. For more information on how to donate your arbitration fees to Legal Aid of Southeastern Pennsylvania, please contact Ann Tydeman-Solomon, Development Director, at asolomon@lasp.org.

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SPRING 201625

After having served as a Bucks County Judge for the past seventeen years, and in the Bucks County District Attorney’s Office for twenty-seven years prior to that, including fourteen years as District Attorney, one would think he would be ready to settle into a comfortable retirement. But that is not the road Alan Rubenstein seeks to travel.

When he turned 70 in March, he faced up to the reality that current Pennsylvania law requires

him to retire at the end of this year, in compliance with a 1968 provision of the Pennsylvania Constitution mandating retirement for all state judges in the calendar year in which they turn 70.

However, if the voters of the Commonwealth see fit to pass a proposed amendment on the ballot in the April primary elec-tion, the mandatory retirement age would be pushed back to age 75, and Judge Rubenstein will be able to continue to serve as a Bucks County jurist.

Clearly, with only eleven full-time judges currently serving on the bench, it is clear that our county needs more judges, not less, especially ones of Judge Rubenstein’s experience and caliber. For example, Delaware County, with a population of 561,973, has twenty judges, and neighboring Montgom-ery County, with a population similar to Bucks County’s, has twenty-three judges. Something is wrong with this picture.

Although Judge Rubenstein has been a public figure for most of his long and storied career, there is no shortage of great stories he could tell (and as his office roommate for two years while serving in the DA’s Office, I am aware of quite a few of them). For instance, there was the time back in 1976 when he received an emergency phone call as the “on call” ADA from the Secret Service that they had in their custody a gentleman by the name of “Billy Spurn” who insisted that he speak with a member of the Bucks County DA’s Office. Turns out that promi-

Judge Alan M. Rubenstein– By Chris Serpico –

nent attorney, William Eastburn, had been arrested by the feds after he refused to move the RV that he and his fellow guests were in when then-Presidential Candidate Gerald Ford made a campaign stop at the Oxford Valley Mall. Fortunately, Alan was able to set things straight.

After getting his undergraduate degree in History from Temple University, Judge Rubenstein attained his law degree at the Uni-versity of Toledo in Ohio, where he served as Editor of the LawReview. He began his legal career as an associate at the Phila-delphia law firm of Galfand and Berger, before deciding that his true desire lay in spending more time in the court room. As luck would have it, a position opened up on the staff of then-DA Ken Biehn, and in 1972, he joined the office that would remain his “home” for the next twenty-seven years. During his tenure, he personally tried thirty homicide cases. Not surprisingly, given his popularity as chief county prosecutor, he was elected to four terms, the only person in Bucks County history to do so.

In 1999, he decided to leave the office he loved and put his name in nomination for judge, to which he was elected in No-vember of that year, taking office in January 2000.

Besides serving on the Bench, Alan also is a licensed boxing judge in Pennsylvania, New Jersey, and New York. He’s been judging professional fights since 1995. When asked to recall his most vivid boxing memory, he recalled the time in 2008 when he was asked by the Las Vegas Boxing Commission to be one of three judges for the World Welterweight Championship bout between Sergio Mora and Vernon Forrest. (For the record, For-rest won in a unanimous decision.)

During his years on the Bucks County Bench, he has spent most of his time in family court, which is somewhat surprising con-sidering his background is in criminal law. However, he came to realize fairly quickly that in family court, he was able to preside in cases involving “real people with real problems.”

He’s found that he can be “proactive” in these cases, and with the proper analysis, he can make a positive influence in the lives of those who come before him, especially the children.

Speaking of children, Alan and his wife Marilyn are the proud parents of two sons, Sam and Justin, and five grandchildren, four girls and one boy.

Finally, I can surely state after spending an hour with Judge Rubenstein, if for some reason the voters of Pennsylvania should vote down the proposed change to the Pennsylvania Constitution, he could spend some of his free time authoring an autobiography on the fascinating life he has led in the law. I would certainly stand in line to buy that book.

pHoto Credit: news.temple.edu

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We Are: BCBF!– By Tina Mazaheri –

Who is BCBF? We all are BCBF. The Bucks County Bar Foundation is the charitable arm of the Bucks County Bar Association. What does that mean? We are the group that makes it our mission to go out into our community, on behalf of all Association members, to promote the idea of justice through the good deeds of our Association members and then publicize what we have done.

Why do we do this? Because we are BCBF. We are here to help our community members and to improve our profes-sion’s image in our community, all at the same time.

BCBF has evolved over the past few years to define our mission on your behalf and to establish our identity. It is my goal over the next two years, as BCBF President, to get you to know who we are, care who we are, understand what benefit we provide to you and for the community to know us, respect us and seek out our help when they need us.

What have we accomplished? BCBF has provided support for charitable, law-related projects and programs in the com-munity and donated tens of thousands of dollars in past years to local charities and organizations such as: Legal Aid of Southeastern Pennsylvania, Doylestown FISH, Tabor Home, Network of Victims Assistance (NOVA) and the Lenape Valley Foundation. We have gone into area elementary schools to teach a program on constitutional law and given each and every student their own copy of a child-friendly colorful pic-ture book on the topic, as well as a gavel-shaped pencil. For some children, that may be the only book they will receive as a present all year. Think about that.

We have created and continue to award college scholarships to area students. One such college scholarship fund was created in memory of former Association President Thomas E. Mellon, Jr. In his memory, I encourage each of you to make a contribu-tion to the fund each and every Saint Patrick’s Day to remem-ber Tom for the many times he may have invited you to his firm’s legendary party. It is not too late to do so for this year.

WeareBCBF;weareyou.

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SPRING 201627

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oLd worLd, new order

In ways the legal world is still struggling to comprehend, the Internet has and continues to play an influential role in defin-ing modern and future copyright law. While quite ubiquitous today for casual users, the ability to instantaneously publish and forever preserve intellectual property online has deep ramifica-tions for copyright authorship, ownership, and rights. When the copyright system was formed, such technological capabilities only existed in works of fiction, and typical uses and misuses of copyrighted works were expected.

Today, however, courts are tasked with using that same legal framework to draw lines between permitted and infringing uses of works when technological innovation changes the ques-tion before the ink dries. In fact, the very nature of “use” is constantly being redefined in a culture fueled by reimagining, combined with the ability to make that a reality. So, what are courts to do in deciding what use constitutes an infringement of copyright and what use is considered fair?

wHat’S Fair iS Fair (uSe)

The essence of copyright law hinges on a copyright owner’s exclusive rights under the Copyright Act. Generally, a copyright holder has the right to reproduce, distribute, publicly display

and perform the copyrighted work, and create derivative works based on the work at the exclusion of others. Those exclusive rights are tempered, however, by the primary defense to copy-right infringement: the doctrine of fair use.

Fair use is a limited ability to use a copyrighted work by exer-cising one or more of the copyright owner’s exclusive rights without having permission from or compensation to the owner. As codified in the Copyright Act, courts determine whether a particular use is fair by examining four factors: (1) purpose and character of use, (2) nature of the copyrighted work, (3) amount and substantiality of the portion used, and (4) effect of the use upon the potential market or value of the copyrighted work. While each of the factors is examined for fair use, many courts and legal scholars herald the first factor, the purpose and char-acter of use, as the most important.

The inquiry into the purpose and character of use has been defined purely through academia and case law. In 1990, after years of struggling with a vague test for fair use, then-District Court Judge Pierre N. Leval authored an essay entitled “To-ward a Fair Use Standard” to present what would eventually become the foundation for the transformation requirement of fair use. In essence, Leval argued that use of a copyrighted work must employ the work in a different manner or for a different purpose than the original to be considered fair. Leval claimed that unauthorized use of copyrighted materials should only be allowed when it adds value to the original work.

Leval’s efforts to emphasize what he believed to be the heart of the fair use inquiry certainly influenced the Supreme Court. In the seminal case on the issue, Campbell v. Acuff-Rose Music, Inc., transformative use became the official legal standard for determining the purpose and character of fair use. If the hope was to clarify the fair use inquiry, however, Campbell has, in hindsight, only raised new questions. In the time since Camp-bell, the transformative use inquiry has become the heart of the fair use test, with recent cases treating it almost as a determina-tive fifth factor.

tHe artiSt FormerLy known aS tranSFormative

In September 2014, the artist Richard Prince was recognized with an installation in the Gagosian Gallery in New York. Prince is primarily known for projects altering others’ photographs. Most famously in 2013, Prince’s changes to a collection of photographs of Rastafarians in Jamaica taken by Patrick Cariou escalated into a copyright infringement case, Cariou v. Prince, taken up by the Second Circuit. However, the court decided that Prince’s alterations were sufficiently transformative so as to constitute fair use. In broad terms, the court decided that fair

– By Denis Yanishevskiy –

(Re)Defining Copyright Fair Use

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There also persists the issue of how transformative is transfor-mative enough, and the envelope on the “I will know it when I see it” approach is constantly being pushed by artists like Prince. Even in cases where at least the transformative nature of the activity in a lay sense seems as though it should not be question-able, courts seem to yield to entities like Google in favor of the enormity of the public benefit. After all these years, do courts remain confused as to where transformative use fits into the copyright scheme despite the doctrine’s early promise, or are they perhaps finally succumbing to the nature of the technologi-cal landscape in which we find ourselves and simply attempting to couch new ideas in old frameworks while waiting for the system to catch up? Can retweets and reposts of copyrighted material, of which millions happen every day, be considered fair uses? Perhaps the matter of public benefit, which was previously hidden behind the need for added value, has just become too great and too necessary to ignore. Maybe this is the new nature of copyright, or maybe courts are still struggling to make old definitions of copyright fit the new creative, or at least benefi-cial, status quo.

Editor’s Note: Mr. Yanishevskiy is a charter member of the newly formed BCBA Intellectual Property Section, chaired by his colleague, Frank Mazzeo. The section welcomes all interested new members.

use was one that alters the original work with new expression, meaning, or message. For his 2014 New Portraits collection, Prince saved screenshots of strangers’ self-portraits on Insta-gram, added some Instagram-style comments, and enlarged them on canvas to sell them for $90,000 each. Though some vo-cal outrage has emerged from some individuals who found their portraits on the gallery walls, no suit has yet been instituted.

SCanninG iS tranSFormative?

One of Google’s latest ambitions has resulted in another legal battle over transformative use. In the early 2000s, Google instituted an initiative to create the largest searchable online database of full-text books and magazines. The Google Books program aimed to scan, convert to searchable text, and store as many unique titles as possible, to ultimately become the world’s largest digital library. However, copyright concerns over the mass digitization project were raised by the Authors Guild, which filed suit against Google for copyright infringement in 2005 and continues the litigation battle to this day. Google’s main defense, upheld most recently by the Second Circuit, was that mass digitization constituted sufficiently transformative fair use. The court based its decision primarily on the benefit of Google’s endeavor to the public, though couching the decision in other fair use terms by asserting that views of the text would be limited and that the market and value of the original works would not be affected, despite Google’s plan to provide access to full-text publications.

a tranSFormative Future?

What the court decisions discussed above symbolize legally is difficult to reconcile with the idea of transformative use. It is surprising to think that after decades of fair use jurisprudence since Campbell, activities such as commenting on photos and digital scanning can nonetheless be considered transformative. Yet, other recent cases have also followed suit, most notably those concerning similar types of Internet activity as in Google’s and Prince’s latest endeavors.

At the very least, this stream of decisions indicates that how transformative use, or the addition of new expression, new purpose, or new aesthetic to a preexisting work, figures into the general four-factor analysis of fair use is still debatable. It may be that transformation should be considered when analyzing the purpose and character of the use alleged to be fair under the first factor, as proposed by Judge Leval and decided in Camp-bell, but as suggested by the decision in Prince, transformative use is often instead akin to a fifth factor or a separate test for fair use altogether because of how determinative it can be.

SPRING 201629

Email is everywhere – on computers, phones, tablets, and even watches. While many of us yearn for the days of pen and paper, the reality is that we live in an electronic world where instant communication is expected. With more being done by email every day, it is important to understand how best to utilize your email

system, as well as recognize some limitations. Attorneys and others in the legal field, by and large, are electronic hoarders. While saving every email sounds great in theory, practically speaking, it is virtually impossible to do so. In addition, for some email systems, the larger the email account, the more susceptible it is to problems.

If you simply cannot part with any emails that come into your inbox, set up an easy to use organizational structure. From past experience, I have found that most people tend to keep all emails received directly in their inbox. While email programs do provide the ability to search the inbox, it is quite cumber-some and often fails to find the necessary items. To avoid such issues, I highly recommend categorizing emails via subfolders.

Every mailbox allows for the creation of folders. For example, my Inbox contains a folder titled “Clients” which contains subfolders for every active client file for which I am respon-sible. If I receive an email on the Smith case, I move it to the corresponding “Smith” subfolder. My inbox remains clear and when I need to find an email related to the Smith file, I know where to look. Sent items can be moved into subfold-ers as well, creating continuity. Generally speaking, creating

subfolders is quite simple. In Microsoft Exchange, right click on the Inbox and select New Folder then name the folder as you see fit. In Mac Mail, select the Mailbox Menu and then New Mailbox, then follow the prompts. Setup varies for each mail application, but is relatively simple for all.

Another tool which frequently goes unused is the “Rule” fea-ture. Rules allow your email account to automatically perform specified tasks. The most common rule is the out of office re-ply, which will reply to every email received with an out of of-fice message for a set period of time. While this is an excellent use of a rule, it certainly does not help on an everyday basis. Rules can also help organize your emails. For example, I re-ceive hundreds of emails each day from various email groups. Each email comes with a unique subject line. With a Rule, I have all emails from each group placed directly into a specific subfolder of my inbox. The Rule does this by matching the unique terms in the subject line and then performing the task assigned – in this case, moving the item to a subfolder. This is great for emails that are not of the utmost importance and can wait for your review. Other helpful uses of Rules include automatically forwarding emails to others with specific subject lines and flagging items as important from specific individuals (very helpful for those with a demanding supervisor).

The amount of work completed and correspondence sent via email is bound to increase in the coming years. The ability to efficiently sort and peruse your emails will only increase in importance. I am confident the basic features discussed will help you start your journey to a clean inbox and save time throughout the day.

Happy computing!

Tech Tips From a Recovering Geek: Unclog Your Inbox– By Jason R. Weiss, Esquire –

technology

30WRITSthe

entertainment

Brushes with Greatness:

3. Sold a gun cabinet and a desk respectively at my father’s furniture store to John Popper (Blues Traveler) and Rob Hyman (The Hooters) (Quakertown, PA)

5. James Taylor sang Happy Birth-day to my wife before starting his second set (Philadelphia, PA)1. Met Jimmy

Buffett in the lobby café of the Ritz-Carlton (Chicago, IL)

2. Spoke with Al Stewart – and found him a plate of hors d’oeuvres – at a pre-concert reception (New Hope, PA)

4. Was kissed by Nan Mancini (Johnny’s Dance Band) on stage at a bar show! (Margate, NJ)

PHOTO CREDITS: Jimmy Buffett: palmbeachpost.com / Al Stewart: www.ingenuemagazine.co.uk / John Popper: kevin-stalkerazzi.blogspot.com / Nan Mancini: www.cdandlp.com / James Taylor: fanart.tv

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