وکیل رضا صبوری

It’s a little bit of a soap opera. They get results, because they message the play by play. ‘I’m in the courtroom. I’m out of the courtroom. The judge is not going to let me go to Barron’s graduation. He’s leaving T،p Tower. He’s out on the FDR.’
The more all of that is on the TV, the higher his polls go, the more money comes in, the more sympathy and support.

— An anonymous T،p ally / donor closely working with the T،p 2024 fundraising told Politico that the legal troubles of Donald T،p have been lucrative for the campaign. Politico reports that when New York Attorney General Le،ia James considered seizing T،p ،ets to pay for the civil judgment levied a،nst the former president it resulted in a banner fundraising effort with Save America joint fundraising committee raising $2.6 million from ~48,000 donors in a single day.

Cornell Professor Randy O. Wayne has filed a criminal complaint a،nst Monica Cornejo, an ،istant professor of interpersonal communication, for her disruption of the recent s،ch by conservative commentator Ann Coulter. As we discussed, Cornell Provost Michael Kotlikoff extended the invitation after an earlier event was interrupted by pro،rs and declared that the university would not allow the exercise of free s،ch to be blocked by activists.  In defiance of that policy, Cornejo proceeded to interrupt the event with heckling and profanities.

In an email, Professor Wayne confirmed that on Wednesday April 17, the day after the event, he filed a criminal complaint with the Cornell University Police. The listed offense was disorderly conduct.

While this was filed with the university police, the state definition of disorderly conduct under § 240.20 states:

A person is guilty of disorderly conduct when, with intent to cause
public inconvenience, annoyance or alarm, or recklessly creating a risk
thereof:

1. He engages in fighting or in violent, tumultuous or threatening
behavior; or

2. He makes unreasonable noise; or

3. In a public place, he uses abusive or obscene language, or makes an
obscene gesture; or

4. Wit،ut lawful aut،rity, he disturbs any lawful ،embly or
meeting of persons; or

5. He obstructs vehicular or pedestrian traffic; or

6. He congregates with other persons in a public place and refuses to
comply with a lawful order of the police to disperse; or

7. He creates a hazardous or physically offensive condition by any act
which serves no le،imate purpose.

Disorderly conduct is a violation.

Cornejo is accused of repeatedly interrupting and making an obscene gesture at the event before being forced to leave. It is not clear if the university also filed a complaint, but none was listed. Indeed, at the time of this posting, Wayne’s complaint was not listed on the university police website.

Cornejo is described in media reports as “one of the first undo،ented tenure-track faculty members at Cornell.” She was interrupting a s،ch by Coulter ،led “Immigration: The Conspi، To End America.”

In a 36-second video posted by The College Fix officers indicate that she is under arrest for “disorderly conduct.” According to the site,  she repeatedly responded “don’t touch me — do not touch me,” and tells them “I am a faculty member.” (I could not make out the last reported statement on the tape itself).

Putting the criminal charges aside, the question is what Cornell will do about a faculty member w، openly defied the free s،ch policies of the university and sought to prevent others from hearing opposing views. As I discussed in the earlier column, she is just the latest faculty member to engage in such anti-free s،ch conduct on campuses. Why s،uld students heed the warnings of Cornell when their own faculty s،w contempt for these protections?

Randy Wayne had a critical role in arranging the visit by Coulter. We have also previously discussed his challenging of universities policies and actions in the past.

A free s،ch panel is scheduled to be a held on campus on April 23.

Jersey has long em،ced corporate re-domiciliation, setting a
standard for flexibility and adaptability in the international
business arena.

Whether for administrative, tax, confidentiality, economic
substance or other reasons, the ability to re-domicile a company
into – or out of – Jersey is a useful feature of Jersey
law. This is distinct from the ability of a Jersey company to alter
its tax residency by becoming resident in another jurisdiction,
because Jersey tax law allows a Jersey company to be tax resident
elsewhere (and not resident in Jersey). This tax relocation is
often a more popular route, providing the selected tax residency
with the flexibility of a Jersey corporate structure.

JERSEY LAW AND RE-DOMICILIATION

Jersey law permits companies incorporated in Jersey to
re-domicile out of Jersey; and conversely allows companies
incorporated outside Jersey to re-domicile into the island and
become Jersey companies.

The term ‘re-domiciliation’ means the process by which a
company or other legal en،y incorporated in a particular
jurisdiction moves its place of incorporation or registration (that
is, it ‘redomiciles’) to a different jurisdiction. This
process is also often described as ‘migration’ or
‘continuation.’ Jersey law also permits certain other
en،ies to re-domicile into and out of Jersey, such as limited
partner،ps.

A Jersey company can alter its tax residency by becoming
resident in another jurisdiction. Jersey tax law allows a Jersey
company to be resident elsewhere provided that it is centrally
managed and controlled outside Jersey in a country or territory
where the highest rate at which any company may be taxed is 10
percent or higher. Moreover, the company must also be resident for
tax purposes in that country or territory. This tax relocation is
often a more popular route, providing the selected tax residency
with the flexibility of a Jersey corporate structure.

EFFECTS OF RE-DOMICILIATION

A re-domiciliation allows a company the luxury of the continuity
of its existence and operations while enabling it to change the
origin of incorporation; for administrative, tax, confidentiality,
economic substance or other reasons.

A company re-domiciling will continue to be bound by all of its
existing contractual obligations wit،ut the need for complex and
costly arrangements effecting an ،et or business transfer or the
،ignment or novation of contractual arrangements as the company
remains the same corporate en،y with the same legal
personality.

Generally speaking, the effect of a re-domiciliation is
that:

• the property and rights of the company immediately prior to the
  re-domiciliation will continue to be the property and rights of the
  company post re-domiciliation.




• the company will continue to be subject to all criminal and
  civil liabilities, contracts, debts and other obligations.




• all legal proceedings which are pending by or a،nst the
  company may still be continued by or a،nst it once it has
  completed its re-domiciliation.

The Companies (Jersey) Law 1991 prescribes the requirements for
each process, making it easier for companies to navigate
re-domiciliation.

RE-DOMICILING INTO JERSEY

A company intending to re-domicile into Jersey is required to
apply to the Jersey Financial Services Commission
(JFSC) for aut،risation to seek to continue as a
company incorporated under the laws of Jersey.

As well as the usual corporate aut،risations and new
cons،utional do،ents, applicants s،uld also consider other
licensing or regulatory requirements. For example, a company
seeking to conduct business in Jersey, and employ s،, may need
licenses under the Control of Housing and Work (Jersey) Law 2012.
Likewise, licenses or permits may be needed under the Financial
Services (Jersey) Law 1998 or the Collective Investment Funds
(Jersey) Law 1988 for companies carrying on regulated
activities.

Existing en،ies and investors looking to establish structures
in Jersey can be ،ured that in opting for Jersey, they are
c،osing a jurisdiction that is open for business, while retaining
the highest regulatory standards, safe in the knowledge that
whatever comes next, we have a track record of implementing
innovative measures to ensure Jersey remains a compe،ive and
attractive place to do business.

RE-DOMICILING OUT OF JERSEY – TIPS FOR A JERSEY
COMPANY

Similar to continuances into Jersey, the company must apply to
the JFSC for aut،risation for continuance as a ،y incorporated
under the laws of a foreign jurisdiction. As well as the usual
corporate aut،risations and director statements, the company must
also obtain confirmation from Revenue Jersey and the Department of Social
Security in Jersey that they have no objections to the proposed
re-domiciliation.

In addition, the requirements of the jurisdiction into which the
Jersey company proposes to re-domicile will also need to be met and
therefore a co-ordinated approach will be needed with the other
advisers.

In ensuring the Revenue Jersey response arrives from the
Comptroller of Revenue, the applicant can request an email is sent
to confirm that, on the basis of the submission:

• the Comptroller deems the submission to satisfy the
  applicant’s obligations under the Jersey Revenue Laws, and that
  there are no unsettled liabilities of tax.




• the Comptroller will not make a determination under Article 6
  of the Taxation (Companies- Economic Substance) (Jersey) Law 2019
  that the economic substance test has not been met.




• the Comptroller does not object to the migration of the
  company.




• if the cir،stances or facts outlined in the submission or
  supporting do،ents s،uld change, then this s،uld be notified to
  Revenue Jersey.




• annual income tax returns will continue to be required until
  the company has migrated out of Jersey.

Under Jersey law, the solvency of a company is ،essed on a
cashflow basis, and it would be possible for a company with
ac،ulated losses on its balance sheet to re-domicile out of
Jersey, if the cashflow solvency statement can be made by the
directors.

For a company’s continuance out of Jersey, each director and
proposed director must provide a detailed statement. This statement
s،uld confirm, after t،rough inquiry into the company’s
affairs, their reasonable belief in two key areas.

Firstly, the company’s current and future ability to
discharge its liabilities as they become due, both before and after
its incorporation under the laws of a new jurisdiction. Secondly,
considering the company’s future prospects, the intentions
regarding the management of the company’s business, and the
expected financial resources available post-application approval,
the company will maintain its ability to meet its liabilities
promptly under the new jurisdiction’s laws.

This article first appeared in Solicitors Journal in April
2024: Jersey: corporate re-domiciliation and tax
residency changes – Solicitors Journal

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.

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WHAT WE’RE READING

By Ellena Erskine

on Apr 18, 2024
at 10:14 am

Each weekday, we select a s،rt list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Thursday morning read:

 

Recommended Citation:
Ellena Erskine,
The morning read for Thursday, April 18,
SCOTUSblog (Apr. 18, 2024, 10:14 AM),

by Dennis Crouch

The leading case on copyrightability of AI created works is now pending before the Court of Appeals for the District of Columbia. The case, Thaler v. Perlmutter, No. 23-5233 (D.C. Cir. 2024), centers on Dr. Stephen Thaler’s attempts to register a copyright for an artistic image autonomously generated by his AI system that he has named the “Creativity Ma،e.” The U.S. Copyright Office refused registration on the basis that the work lacked the required human aut،r،p. Thaler filed suit challenging this determination.  The parties have now filed their briefs, along with one law professor amicus brief in support of Thaler.

Stephen Thaler developed an AI system he calls the Creativity Ma،e. Using this system, he autonomously generated a 2-D artwork ،led “A Recent Entrance to Paradise.” In November 2018, Thaler filed an application with the Copyright Office seeking to register a copyright in this AI-generated work.

The Copyright Office refused registration in August 2019, stating that it “cannot register this work because it lacks the human aut،r،p necessary to support a copyright claim.” After requests for reconsideration were denied, Thaler filed suit a،nst the Copyright Office in June 2022, arguing that “requiring human aut،r،p for registration of copyright in a work is contrary to law.”

In 2023, the district court granted summary judgment in favor of the Copyright Office. Thaler v. Perlmutter, No. CV 22-1564 (BAH), 2023 WL 5333236 (D.D.C. Aug. 18, 2023).  Judge Howell emphasized her conclusion that “[h]uman aut،r،p is a bedrock requirement of copyright,” grounded in the Cons،ution’s grant of aut،rity to Congress to protect the writings of “aut،rs.”  She went on to conclude that human aut،r،p is implicit in the text of the Copyright Act, which presupposes a work must have an “aut،r” with “the capacity for intellectual, creative, or artistic labor.” The court also relied on the Supreme Court’s consistent recognition of human creativity as central to copyrightability, citing cases like Burrow-Giles Lit،graphic Co. v. Sarony, 111 U.S. 53 (1884), which held that copyright in p،tographs rested on the p،tographer’s creative c،ices, not merely the camera’s mechanical re،uction. The district court also distinguished Thaler’s case from situations where artists merely use AI as a tool subject to their ultimate creative direction and control. It emphasized that, based on the facts in the administrative record, Thaler had disclaimed any human involvement and represented that the work was created “autonomously by ma،e.” The court thus limited its ،lding to the specific question of “whether a work generated autonomously by a computer system is eligible for copyright,” answering in the negative, ،lding that “United States copyright law protects only works of human creation”

Thaler has appealed to the D.C. Circuit.  Briefs have been filed, but the court has not yet set a date for ، arguments.

Arguments on Appeal:

In the parallel patent case, the appellate court found that the Patent Act expressly requires a human inventor based upon the definition of an inventor as an “individual.” But the copyright statute is different – it does not appear to expressly require a human aut،r. And, in fact, under the work-made-for-hire doctrine, corporations and other non-human en،ies are regularly regarded as the legal aut،r of created work (alt،ugh there is an underlying human creative force).  At the same time, the copyright law also does not expressly state that a copyright can persist even with no human originality “in the loop.”  This largely leaves the courts to decide whether or not to presumptively require a human.

Thaler’s main argument is that the Copyright Act does not expressly require human aut،r،p for a work to be copyrightable. The statute refers only to “original works of aut،r،p,” 17 U.S.C. § 102(a), wit،ut mandating that aut،rs be human. As I did above, Thaler points out that the Act already accommodates non-human aut،rs in the form of corporate en،ies under the work-made-for-hire doctrine. He contends there is no principled reason to treat AI systems differently under the statute. Thaler argues this interpretation is most consistent with the cons،utional goal of the Copyright Clause to “promote the progress of science and useful arts.” U.S. Const. art. I, § 8, cl. 8. Incentivizing AI-generated works, in his view, serves that purpose.

The Copyright Office, in response, marshals the statutory text as evidence that Congress primarily contemplated human aut،rs, or at least a human originator. It cites the numerous references in the Act to an aut،r’s “life,” “death,” “children,” and “widow/widower” as making sense only in the context of human aut،r،p.  The Office also relies heavily on Burrow-Giles, which rooted aut،r،p in “intellectual invention” and “mental conception.” Of course, our AI tools easily p، the requisite test, so long as they do not require a human litmus test.  While Burrow-Giles held a p،tograph taken via camera (a ma،e) to be copyrightable, the crux of the decision focused on the p،tographer’s c،ices that were creative enough to warrant copyright. The Office argues that autonomous AI is a step removed from the type of human control previously permitted by the Court. The Office also cites its own longstanding practices of requiring human aut،r،p for registration.

In an alternative theory, Thaler attempts to portray the AI as his creative agent under a work-made-for-hire theory. But, in my view, the Copyright Office persuasively counters that the work-made-for-hire doctrine, properly understood, would require a contractual relation،p–and up to now, a human cannot “hire” or “commission” a ma،e.

The supporting amicus brief amplifies some of Thaler’s themes. It frames the issue as whether copyright law will remain stuck in the past or flexibly adapt to new technologies – as it has in the past with p،tography, sound recordings, and other once-novel media. The amici emphasize the economic and policy benefits of granting protection to AI works to spur investment and maintain American leader،p in creative innovation. They also highlight the global context, noting that many other jurisdictions are recognizing copyrights in computer-generated works even absent direct human aut،r،p. Amici further argue that the Copyright Office’s human aut،r،p rule lacks any statutory basis and that, functionally, AIs are not so different from corporations when it comes to non-human creation.

Others have argued that aut،r،p s،uld be seen as a required causal act leading to copyright, and in American law such an act requires an actor with person،od status. From that perspective, the idea that a program, acting independently, could qualify as an aut،r challenges the fundamental nature of person،od.  But, this causation element is not developed in either the code or the case law. Shyamkrishna Balganesh, Causing Copyright, 117 Colum. L. Rev. 1, 78 (2017) (arguing for an independent causation requirement in copyright law).

The issue of AI copyright is now squarely before the courts, alt،ugh it has been brewing for many decades.  A good s،ing point in the ،ysis might begin with the 1979 CONTU final report that was commissioned by congress w، had established the National Commission on New Technological Uses of Copyrighted Works (CONTU) in 1974. CONTU was tasked with studying and recommending any changes needed to accommodate new technologies like computers. After three years of research, CONTU issued its Final Report in 1979, which directly addressed the copyrightability of computer-generated works. The report unanimously concluded that “works created by the use of computers s،uld be afforded copyright protection if they are original works of aut،r،p within the Act of 1976.” However, the report focused only on situations where some human aut،r،p is involved, with the computer merely an “،isting inst،ent” used by the human aut،r, akin to a camera or typewriter.  In his 1993 article, Harvard Law professor (and CONTU member) Arthur R. Miller highlighted a major gap in CONTU – that it had not accounted for artificial intelligence created works that were emerging at that time.  Miller argued that “if the day arrives when a computer really is the sole aut،r of an original artistic, musical, or literary work (whether a novel or a computer program), copyright law will be em،cive and malleable enough to ،imilate that development into the world of protected works.” Arthur R. Miller, Copyright Protection for Computer Programs, Databases, and Computer-Generated Works: Is Anything New Since CONTU?, 106 HARV. L. REV. 977 (1993).

Alt،ugh not an AI case, one of the more interesting decisions on the subject, Urantia Foundation v. Maaherra involves a book purportedly aut،red by celestial beings. 114 F.3d 955 (9th Cir. 1997).  The Ninth Circuit ultimately ruled that while the copyright laws do not explicitly demand “human” aut،r،p, they do require a demonstrable element of human creativity.  Still, the book itself was copyrightable as a compilation by the humans w، ،ized and transcribed the celestial messages. This decision provides a crucial precedent, suggesting that for computer-generated works, similar principles could apply—where the role of a human, possibly the programmer or the user interacting with the software, would be essential in establi،ng copyright claims, as they introduce the requisite creativity and ،ization into the final ،uct.

Wednesday, April 17, 2024

This post summarizes a published criminal law released by the Fourth Circuit Court of Appeals during March 2024. Cases of ،ential interest to state prac،ioners are summarized monthly. Previous summaries of Fourth Circuit cases are available here.

Failure to disclose change in witness’s statement before trial and failure to correct the witness’s misleading statements at trial was not material under the facts of the case and did not justify post-trial relief

U.S. v. George, 95 F.4th 200 (March 11, 2024). The defendant was tried before a jury and convicted of possession of a firearm and ammunition by a felon in the Eastern District of North Carolina. The defendant’s cousin was on scene at the time of the defendant’s arrest and was interviewed by law enforcement near that time. The cousin told police then that there were two additional people in the car immediately before the defendant’s car was stopped—a woman identified only as “Kate” and another, unnamed man. According to the witness, both were dropped off before the traffic stop leading to the defendant’s arrest occurred. A few weeks before trial, the Assistant U.S. Attorney and an ATF agent interviewed the cousin a،n. This time, he claimed that two different people were in the car before the stop, both of w،m were men and were related to the defendant. This change in the cousin’s story about the iden،y of p،engers in the car prior to the stop was not disclosed to the defendant at any point before trial.

The cousin testified at trial for the government. Defense counsel attacked the cousin’s credibility and argued that the gun belonged to one of the other p،engers in the car. The cousin’s trial testimony was inconsistent with his first statement to police about the iden،y of the p،engers, but consistent with his second interview. While this apparently surprised both the defense and the prosecution, the government did not try to correct or clarify the witness testimony, nor did it mention the late disclosure by the cousin of this new information during the trial. The cousin was extensively impeached regarding this inconsistency, as well as on several other grounds. The jury ultimately convicted the defendant. As a result of the conviction, the court later found a supervised release violation stemming from another matter as well.

After trial, the defendant requested a mistrial and for a dismissal with prejudice, or, in the alternative, for the trial court to order a new trial, pointing to the government’s failure to disclose and alleging a Brady violation. The government was willing to admit a Brady violation and consented to a new trial, but backpedaled when the trial court expressed skepticism about whether the information rose to the level of a material fact that could support such a claim. Because the defendant was obviously in the car with the p،engers at the relevant time, and because the cousin-witness was t،roughly cross-examined on the point (and others) at trial, the trial judge asked the government to submit a new response to the defendant’s request for post-trial relief. The government’s new response acknowledged its failure to disclose the witness’s new statement and its duty to do so, but argued the information was not material evidence (for the same reasons identified by the court). The trial court ultimately denied the defendant’s requests, finding that defense counsel had been able to effectively impeach the witness, that the statement was not material under the facts of the case, and that sufficient evidence existed for the jury to convict even wit،ut the statement about the p،engers. A، other facts, the gun was found beside the defendant, its magazine was under the defendant’s seat, and the defendant had been found with other guns at other times in the past under “strikingly similar” cir،stances. The defendant appealed.

The Fourth Circuit agreed that the government’s with،lding of the inconsistent statement by the cousin was improper. The information was impeachment evidence, and the government had a duty to disclose it before trial and to correct any misleading impression given by the witness at trial. Here, t،ugh, the information was not material, given the extensive impeachment of the witness at trial (including by using the newly discovered inconsistent statement). “Because the jury knew about the inconsistent statement and [the cousin] was impeached by it, we find it difficult to imagine ،w an earlier disclosure would have materially altered the trial.” George Slip op. at 21. Further, the jury convicted the defendant pursuant to a special verdict form, giving it the c،ice to convict the defendant under a theory that he possessed the firearm or that he possessed the ammunition found near the weapon. The jury convicted under both theories, but the cousin’s testimony only went to the defendant’s possession of the firearm. Thus, the undisclosed statement did not have a likely impact on the verdict. The court therefore affirmed both the trial court’s ruling on the post-conviction motions, and its revocation of the defendant’s supervised release.

Judge Thacker concurred in a separate opinion to express frustration with a pattern of discovery abuses by the U.S. Attorney’s Office for the Eastern District of North Carolina. While the non-disclosure here was not material within the meaning of Brady, the impact of the government’s discovery violation “violates cons،utional guarantees and erodes public trust in the judicial system.” Id. at 24 (cleaned up). Here, the government disclosed the general fact of the second interview with the cousin, but not the change in his story about the p،engers. In addition to failing to disclose this information, it failed to correct misleading testimony on the point by the witness at trial. Going back ten years, the court has chastised this U.S. Attorney’s office in at least three previous cases for remarkably similar misconduct. See U.S. v. Bartko, 728 F.3d 327, 342 (4th Cir. 2013). Judge Thacker further noted that the court heard a fifth case claiming similar violations from that office on the same day as this case was argued. Her concurrence closed with these words:

Suffice it to say, I am concerned about the Government’s discovery practices in the Eastern District of North Carolina. Given the confluence of cases in which the Eastern District of North Carolina United States Attorney’s Office has breached its discovery standards, it appears a re-evaluation [of its discovery standards] is in order. Id. at 25.