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At Vakantiepark Familieshuis Nunspeet you will encounter this cozily furnished chalet (55 m² / 592 sq. ft.) located on a spacious lot.
Lay-out: living room with fully furnished open kitchen equipped with dishwasher and (combination) microwave. Patio doors open onto the terrace with garden furniture. Bathroom with shower, washstand and toilet. Three bedrooms, one of which with a double bed and two with single beds and/or bunk beds. Each chalet has parking space for one car. The furnishing/arrangement of the chalets can vary per individual house. Each accommodation has wireless internet.
August 2018 - Alexander K.
August 2018 - Jake R.
August 2018 - J. d.
August 2018 - Jacco Z.
July 2018 - J. v.
July 2018 - M.M. B.
July 2018 - Marc B.
June 2018 - Wiepke S.
May 2018 - Anton C.
August 2017 - T.C.J L.
August 2017 - A.B. S.
August 2017 - Fam. M. B.
July 2017 - Peter D.
August 2017 - A v.
July 2017 - Bettie V.
July 2017 - Wijnand V.
June 2017 - Dennis L.
June 2017 - M. P.
June 2017 - C. P.
May 2017 - Gerjan B.
May 2017 - P.M. V.
May 2017 - Geertje S.
May 2017 - Conny V.
May 2017 - A.J. V.
May 2017 - Chahida A.

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Meyer, et al. v. Clinton (Department of State): The United States Equal Employment Opportunity Commission (EEOC) certified a class action, and denied an appeal of the certification decision, and refused to reconsider its decision certifying a class on behalf of all disabled Foreign Service applicants against the U.S. State Department. The Class Agent in the matter, Doering Meyer, is a woman with multiple sclerosis (MS) who qualified for a Foreign Service Officer position after a rigorous screening process – only to be denied employment because her multiple sclerosis automatically disqualified her, under the State Department guidelines challenged in the complaint.
Boyd, et al. v. Bank of America, et al., in which hundreds of residential real estate appraisers won a judgment in a certified a class action challenge to their classification as exempt from overtime. The settlements on behalf of more than 700 staff appraisers and review appraisers paid $41.8 million – with both positions reclassified as non-exempt, entitling these workers to overtime going forward.
Quiles, Turman, et al. v. Koji's Japan, Inc., Arthur J. Parent, Jr., in which the California Court of Appeal held in a published opinion - after seven years of litigation - that the owner and president of a defunct restaurant company could be personally liable to a class of former employees for wage violations, as a joint employer and an alter ego under California law. The trial court thereafter certified class claims against the owner and his company. The original named plaintiff, a server who worked for minimum wage plus tips, was fired in retaliation for filing her class action, and won nearly a million dollar jury verdict in Orange County, for retaliation under the federal Fair Labor Standards Act, including hundreds of thousands for her and her full fees and costs.
Bhat v. DC Water & Sewer Authority, in which the water quality manager for DC's water provider was vindicated, after being terminated for disclosing to the EPA excessive lead levels in the drinking water. The Department of Labor's 186-page decision awarded full relief, plus compensatory and punitive damages, after an eight-day public hearing regarding her termination. The case was publicized nationally and internationally on MSNBC, NPR, Voice of America, and the Hindustani Times (India's English daily), among others, and locally (in Washington, DC) on the front page and editorial pages of The Washington Post, on ABC, CBS, FOX, NBC, and WAMU Radio (88.5 FM). The Washington Post editorial after her victory was entitled, "Justice for Seema Bhat."
Sposito-Bernath v. The Board of Trustees of California State University, et al., in which Plaintiff, an administrative assistant for SFSU for over a decade, was placed on administrative leave and required to attend a fitness-for-duty psychological exam by Human Resources after allegedly demonstrating signs of “chemo brain” when she returned to work after receiving aggressive treatment for cancer that resulted in a $575,000 settlement. The case was publicized in the San Francisco Examiner and The Mercury News.
Nigam v. US Dept. of Housing & Urban Development, in which a Bush Cabinet Secretary was found to have discriminated personally against a mid-level manager in a non-selection, based upon race and national origin, and in denying her a bonus after she complained of his discrimination against her, based on retaliation. The Equal Employment Opportunity Commission awarded the full damages sought, plus extensive injunctive relief, including posting of notices nationwide about the Secretary's unlawful actions.
Cross v. Smithsonian, in which a whistleblower was fired after exposing extensive corruption at the Smithsonian's National Air & Space Museum, including top managers' use of the Agency's employees to do the managers' personal projects. The Washington Post described the Agency's wrongdoing, exposed by the employee, in a cover story. Ultimately, the Merit Systems Protection Board affirmed the Judge's decision awarding full relief, and the employee returned to his job with head held high, and with complete backpay, after more than four years of heated litigation.
Stanfield, et al. v. First NLC, in which a class of approximately 3,000 mortgage industry employees nationwide received a $14 million settlement for alleged overtime and other wage/hour violations, along with reclassifications of thousands of workers as non-exempt.

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Every year, pet parents are warned not to leave their animals in parked cars, which can get fatally hot, even on a temperate day. Yet every year, we hear reports of pets who are subjected to unnecessary suffering because of the selfishness or ignorance of their owners.
While the majority of pet parents have the common sense to avoid this situation, there are always those few who refuse to do what’s best for their companions. When this happens, it’s up to us, the animal advocates, to do what’s best for those who can’t help themselves. And sometimes, springing into action means the difference between life and death.
Note: the dog in this photo was not harmed!
Although many dog lovers would rescue a pooch in need at any cost — even if that means facing legal repercussions — these penalties can be avoided if you know your rights, depending on the state you’re in. After all, to save a trapped pup, you’ll likely have to damage or break into a stranger’s car. But if you’re able to act quickly and legally, you can hope for the best possible outcome: no legal consequences, plus a life saved.
Researching laws can be overwhelming and confusing, but thanks to Animal Legal Defense Fund (ALDF), you can read a clear and concise synopsis on your state’s “hot car” legislation below.
The information below has been re-printed with permission from the Animal Legal Defense Fund. You can view the original article here.
Such laws do not prohibit confinement at specific temperatures for a specific amount of time. Rather, the provisions tend to prohibit a broad range of conduct, i.e. confining an animal in a manner that endangers his/her health or safety.
Arizona: HB 2494 provides civil immunity for persons who rescue a domestic animal from a locked and unattended vehicle after notifying law enforcement.
California: Cal. Penal Code § 597.7 and Cal. Civil Code § 43.100 grants civil immunity for any person who takes reasonable steps to remove an animal from a vehicle if that animal’s “safety appears to be in immediate danger from heat, cold, lack of adequate ventilation, lack of food or water, or other circumstances that could reasonably be expected to cause suffering, disability, or death to the animal,” and that person calls law enforcement after entry. In addition, criminal immunity applies if that person takes certain steps first, such as contacting law enforcement, has a good faith believe that the entry is necessary, remains with the animal in a safe location, and uses only as much force as necessary.
Colorado: Co. Rev. Stat. 13-21-108.4 grants civil and criminal immunity to persons rendering emergency assistance to a dog or cat in a locked vehicle.
Florida: Stat. § 768.139 grants civil immunity for damage to the vehicle for a person who “enters a motor vehicle, by force or otherwise, for the purpose of removing a vulnerable person or domestic animal,” as long as certain conditions are met, such as first calling 9-1-1, using no more force than is reasonably necessary, and remaining with the vulnerable person or animal in a safe location near the vehicle until law enforcement arrives.
Indiana: IC 34-30-30 provides that a person is liable for one-half of the cost of repairing the damage to the motor vehicle directly caused by the person’s forcible entry but is immune from any further civil or criminal liability for removing a domestic animal in a locked vehicle if certain conditions are met.
Massachusetts: Mass. Gen. Laws ch. 140, § 174f (Effective November 17, 2016) grants civil and criminal immunity for entering a motor vehicle to remove an animal if certain requirements are met, such as making reasonable efforts to locate the vehicle owner and notifying law enforcement.
Ohio: Ohio Rev. Code Ann. § 959.133 grants civil immunity for damage resulting from forcible entry of a vehicle “for the purpose of removing an animal” or a minor from the vehicle if certain conditions are met, including having a good faith belief that the animal is in imminent danger, making a good faith effort to call 9-1-1 before entry, not using more force than is reasonably necessary, and making a good faith effort to leave notice on the vehicle’s windshield about the reason for entry into the vehicle.
Oregon: HB 2732 grants criminal and civil immunity to a person who “who enters a motor vehicle, by force or otherwise, to remove a child or domestic animal left unattended in the motor vehicle,” if that person has a good faith belief that entry is necessary to rescue the child or animal from imminent danger and that person takes certain steps before entry, such as contacting law enforcement.
Tennessee: Tenn. Code Ann. § 29-34-209 allows persons to break into cars to save children or animals. Specific steps, including searching for the owner and notifying law enforcement, must be taken to qualify for protection under the law.
Vermont: 12 V.S.A. § 5784 grants civil immunity to a person who “forcibly enters a motor vehicle for the purpose of removing a child or animal” if that person takes certain steps, like calling 9-1-1 and first determining that there is no reasonable method for the child or animal to exit the vehicle.
Wisconsin: Wis. Stat. § 895.484 prevents Good Samaritans from being sued for breaking into a vehicle to rescue a pet or child, but only if police are contacted before the break-in to make sure the pet or child is really in danger.
HB524 would provide civil immunity for persons who rescue a domestic animal from a hot vehicle.
“Hot car” laws are becoming increasingly more prevalent, with eleven enacted in just the last two years and two more pending.
While only eight states currently allow concerned citizens to break into vehicles to rescue an animal, prosecutors may be reluctant to bring charges against rescuers, given the public relations nightmare and scant chance of a conviction. In Georgia, for example, charges were dropped against a man who smashed a car window to rescue a Pomeranian mix who was in distress.
In states without hot car laws, perpetrators may still be prosecuted under the general anti-cruelty laws. In Lopez v. State , the defendant left his dog in his car on a hot day to go and watch a movie in a theater. Though Texas does not have a “hot car” law, he was ultimately convicted under the state’s anti-cruelty law.
Special thanks to the Animal Legal Defense Fund for granting permission to share this valuable information. The ALDF’s mission is to protect the lives and advance the interests of animals through the legal system. ALDF.org is a wonderful resource to research animal rights lawsuits, laws, and much more. If you’d like to help them continue their life-saving work, you can donate here.
Share this blog with all the pet parents you know – it’s important to know your rights!


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newly developed software where only the design was copied.
Supposing that the expert discovers that significant copying has occurred, where does that leave him. Has copyright infringement or software piracy been proven? This current article discusses, from an experts perspective, what additional investigations must be performed, what additional evidence must be collected, and how such evidence should be presented at trial.
There are three general types of protection for software -- patent protection, copyright protection and trade secret protection. Software patents can protect ideas, methodologies, processes, and algorithms as well as specific resulting programs. Copyrights cannot protect ideas, methodologies, processes or algorithms. Copyright protection extends only to original expression of ideas. Therefore, since at least one idea is included in every work containing original expression, there are some elements of every program to which copyright protection cannot extend. Whereas patent and copyright protection for software derive from the U.S. Constitution, trade secret protection derives from the common law and varies from state to state. This current article is concerned only with copyright protection.
The article, "Technical Experts in Computer-Related Intellectual Property Litigation," (3) describes a methodology that an expert can use to determine whether one work was copied or derived from another. That article does not address the concept of protectable expression, but rather, discusses ascertaining the relationship between two software packages. The methodology involves looking for instances of exact duplication or for substantial similarity. These concepts of duplication and similarity can apply to both literal and non-literal copying. Literal copying involves exact duplication of expression, but is generally applied to duplication of code. Non-literal copying involves creating a work that duplicates the functionality without actually copying code. In its simplest form, it could be the virtual translation of code from one computer language into another. In its most complex form, it could be the creation of a work that looks and acts exactly like the original work where no copying of code is involved. Copying does not have to be exact and total. Parts of one software system can be either literally or non-literally duplicated in another software system. Furthermore, the fragments duplicated from the first system could be only a small part of the total of the second system. Nonetheless, that does not necessarily represent de minimis copying. Where the two software systems are not exactly alike, one must look for substantial similarities to determine whether one is a derivative work of the other.
When literal copying is present, one standard method of proving infringement is to count the number of lines of code that were copied from the allegedly infringed software, and compute the percentage of the allegedly infringed work that that code represents. Often, the reverse calculation is also performed whereby the percentage is computed of the copied code in the infringing work. This reverse calculation is meaningful only as one method of determining how important the infringed work is to the infringing work. This is often used for computation of damages. As will be shown later, this general method of proving infringement fails since it does not address the issue of protectability.
Whelan v. Jaslow (4) is a landmark Third Circuit case that addresses the issues of substantial similarity and protectable expression. First, the court determined that every program has a main idea. Once that is removed from the program along with the other previously mentioned non-protectable elements, the software is left with a kernel that can be considered to be protectable. The court found that it is relatively easy to ascertain literal copying. Since, in the case at issue, literal copying had not occurred, the court next attempted to set a standard for substantial similarity to determine whether non-literal infringement was present. The Whelan Test established that the plaintiff must prove similarities in structure, sequence and organization of the allegedly infringing work to the protected expression in the allegedly infringed work. In the case at issue, substantial similarity was established in the file structures, screen outputs and in five subroutines in the software.
Although Whelan v. Jaslow is no longer considered authoritative in all but the Third Circuit (where its standards must still be applied), subsequent case law has failed to address the issue of how to ascertain substantial similarity. Whelan v. Jaslow has been criticized because of its failure to properly define the kernel of protectable expression. (5) The court in Computer Associates v. Altai (hereinafter Altai) specifically criticized Whelan for stating that every program has one main idea, and once that is extracted, what remains is expression. Altai goes on to point out that computer programs can have many ideas. The fact that a program may be modular (i.e., it can be broken down into independent segments or sub-programs) demonstrates that there are at least as many ideas as there are modules.
This article proposes that, despite Whelans shortcomings in defining the core of protectable expression, the Whelan Test for substantial similarity can still be used as the basis for ascertaining infringement. In the past, there have been many ambiguities in defining the concepts of structure, sequence and organization. However, once these ambiguities have been eliminated, these three elements provide a necessary and sufficient proof of substantial similarity.
Theoretically, a computer contains a series of ON-OFF switches. When a switch is ON, its state is described by the number 1; when it is OFF, its state is described by the number 0. This binary state is important, because when these switches act in tandem, binary numbers are defined by a collection of digits (each switch representing a digit or bit). A group of eight bits is called a byte. Characters (alphabetic and numeric), each represented by a single byte, are constantly transmitted within a computer. Often, the bytes form numbers. A computer understands these binary numbers. Sometimes these numbers represent instructions that the computer must execute, and sometimes they represent data to be operated upon. A collection of these binary numbers represents what is known as machine or object code.
A program is a series of steps that a computer follows to perform a defined task. These steps are defined by a programmer. The programmer is the author or creator of the program. A computer "understands" and executes object code. However, most programmers find it extremely difficult to write programs in object code. Therefore, higher level computer languages were created so that humans would find it relatively easy to write a program. A program written in a higher level computer language represents source code.
The first step in writing a program is to develop an idea or several ideas. These generally represent the purpose(s) of the programs existence and the general concept of what the program is supposed to do. The next step is to perform an analysis of the programs functionality. A step normally performed during this analysis is the definition of requirements for the program. Next, the design is generated. During this phase, the system is "cast in concrete" and, at the highest level, the structure of the program is defined. The design proceeds from general to specific. The organization is defined next, and the sequence is defined last. Finally, the specific instructions are written in source code, and the program is tested.
The structure of a software program is the definition of the relationship between the modules or sub-programs to each other and to the software program as a whole. It also includes the definition of the data elements and their relation to each other in the database or file system.
The organization of a software program defines the functions of each and every module or sub-program. It also defines how each module processes data and performs input and output operations. A data flow diagram, if present, is normally part of the organization.
The sequence of a software program defines the order of operations and flow of control.
Therefore, a description of the structure first, the organization next, and the sequence last moves in order from the general to the specific.
The structure is static in that it defines what the system is. The organization and sequence are both dynamic in that they define what the system does.
A Hierarchy Diagram shows the inter-relationship of modules or sub-programs. It looks like a corporate organization chart.
The entire purpose of the above program is to calculate payroll. The main module is therefore called "Calculate Pay." Theoretically, all of the sub-modules can be contained within this main program. For example, they can be subroutines whose code is contained within the body of the main program or they can be coded in-line. Sub-modules can also be physically separate programs or blocks of code. All that is required of the main module above, is that at some appropriate points during execution, it must transfer control to each of its two sub-modules. Note how the modules are numbered to establish hierarchy. (See the lower right hand corner of each box.) Also, note that some modules have program names. (See the lower left hand corner of each box.) Apparently, in this software package, the modules that have specific names are either external programs or subroutines, while the other modules appear to have been coded in-line.
Another type of hierarchy diagram can be created as a Microsoft Excel spreadsheet. This diagram has the advantage of being more compact and easier to manage than one produced using the IBM standard. Even though plastic templates are usually used to create IBM hierarchy diagrams, one requires some minimal artistic ability to place modules on the chart. The charts can become quite crowded with a lot of boxes. Excel hierarchy charts can be more easily manipulated. The order of the modules and sub-modules can be changed "on the fly." Finally, the spreadsheet diagram is easier for some individuals to interpret than the more traditional organization chart.
In addition to describing the data structure, if the files interact together to form a database, the relationship between the files should be defined. Often company databases are relatively independent of the programs that comprise the software system. Frequently, the data is manipulated by a separate DBMS (database management system). Sometimes this DBMS is commercially available, and sometimes it is developed in-house. Each DBMS comes with its own method of describing the relationship between the several datasets that comprise the database. This will not be discussed in detail in this article. However, the structure definition is not complete without such a description.
The creation of a clearly defined structure of both software and data usually represents non-literal creative expression. Using the methods discussed above, it is possible to show similarities in structure both qualitatively and quantitatively. With regard to software modules, it becomes obvious from the hierarchical diagrams when even small portions of the software have the same structure. It is the same with data structures. However, while demonstrating structural similarity is usually necessary to prove substantial similarity between two software systems, it is not always sufficient without demonstrating the same for organization and sequence.
Once the structure is described, the program modularity and data structure are known. The first step in defining the organization of a software system is to describe the function of each program module and sub-module in detail. Next, the interaction of the modules with the data must be defined in terms of input and output.
Error Messages (used for output only).
This type of high-level IPO chart is called an overview diagram. The Process section contains, in general terms, the numbered modular steps that must be performed. The actual sequence is unimportant at this level. The Process section only provides a description of what the module does. The Input section shows those files from which data is read, while the Output section shows those files to which data is written.
The HIPO package for our payroll system as shown above moves from the general to the specific. The top portion of the figure is the hierarchical diagram. It shows the modular structure of the entire software system. The central portion is the overview diagram (which is really a high level IPO diagram) for module #3.0. This diagram shows the organization for that sub-module. The detailed IPO diagram for this module is shown as the bottom portion of the figure. This diagram shows the exact sequence of steps in module #3.1. Note that there is a section marked "Extended Description." This is to provide for further notes.
As is seen, the exact sequence of steps is shown in the process section. For each step shown, the interaction with data is described. In the extended description section, detailed notes are provided. Generally, IPO diagrams for large modules consist of many pages.
Detailed IPO diagrams should be constructed for every module. HIPO does not necessarily encourage drawing overview diagrams for some modules and detailed IPO diagrams for other modules. The overview diagrams are used to show organization while the detailed IPO diagrams are used to show structure. Therefore, where necessary, both types of diagrams should be drawn for the same module.
This graphical method of looking at a program demonstrates what is actually going on in the program. The traditional flow chart is merely another method of writing code. Flow charts represent yet another programming language. However, when looking at a flow chart, it is very difficult to "see the forest through the trees." It is too detailed. It is nearly impossible to look at the flow charts of two software systems and find sequential similarities. On the other hand, HIPO diagrams easily demonstrate whether or not substantial similarities exist in structure, organization and sequence.
As was mentioned earlier, the principle criticism of the Whelan Test was its simplistic approach for eliminating unprotectable expression when trying to determine substantial similarity. The Altai Methodology (11) has generally replaced the Whelan Test in ascertaining copyright infringement. Only the Third Circuit still uses Whelan and has not yet adopted Altai.
The Altai Methodology is a three step process.
1. Abstraction - Software is developed on many levels of abstraction. Development normally proceeds from the general to the specific. These phases cause the software to be generated on various levels such as the object code, source code, general behavior of the software, etc. The abstraction process separates these levels and allows them to be considered separately.
2. Filtration - For any level of abstraction, unprotectable expression in the allegedly infringed code must be identified and removed from consideration. Once this is done, what is left in the software is a core of protectable expression.
3. Comparison - The allegedly infringing software is then compared with the core of protectable expression in the allegedly infringed software. If substantial similarities are observed, then infringement has indeed occurred.
The specific technical details of the Altai Methodology will now be discussed.
The abstraction step is not as simple as it may seem. Everyone knows that software can exist as both source and object code. However, many more levels of abstraction exist. In its simplest form, a program is a collection of ones and zeros. The specific arrangement of these binary digits is called object code. On a higher abstraction level, object code can be represented as a collection of hexadecimal numbers (base 16). This is more understandable than ones and zeros. Yet, this level does not enable much interpretation. When source code is written in assembly language, there is a one-to-one correspondence between each source code statement and each object code statement. However, assembly language code is much easier to understand than object code. Software written in higher level programming languages is even easier to interpret.
Assembly language is often called a first generation language (1GL). However, most source code is written using a third generation language (3GL). Computer languages such as BASIC, COBOL, FORTRAN, PL/1, C and C++ are 3GLs. What ever happened to 2GLs? Languages such as RPG and DATABUS had structure corresponding roughly to assembly language, but which made it easier to write programs. These were called second generation languages. Programs written in any of these source code languages are said to have been coded procedurally. Procedural programming consists of creating a sequence of steps that a computer follows to accomplish a certain task.
Programming is a very mechanical process. There is no reason that it cannot be done by a computer. However, an analyst is still needed to tell the computer what to do. Therefore, fourth generation languages (4GLs) were created to assist with this task. Typically, an analyst sits at a terminal and uses the 4GL system to design menus, screens and reports. Often, calculations can also be programmed in the same way. Databases are defined, and data is linked to the processing modules. Sometimes source code is generated by the 4GL, but often, the system generates object code that is interpreted directly by the computer. This type of programming is still procedural, but barely so.
On this level of abstraction, we have the menus, screens and reports. Each of these items is programmed to behave in a particular way. For example, a screen sub-program would place titles, input fields and output fields in specific positions on a computer screen. The operators flow of control is fixed by the program. Sometimes, sounds emanate from the computer at certain points in the process. The sub-program has a particular look and feel. At this level, HIPO can still be used to describe the structure, organization and sequence. Screens can also be the subject for audio-visual copyrights, but such registration is not necessary to protect most elements of look and feel.
A number of non-procedural programming systems have been developed. Spreadsheet systems have been produced by companies such as Lotus and Microsoft. These systems are highly interpretive and data intensive. In its simplest form, a spreadsheet consists of a matrix of data. The matrix is normally two-dimensional (consisting of rows and columns), but some systems allow three-dimensional matrices. The basic element of a spreadsheet is called a cell. Cells hold not only data but also processing formulas and algorithms. The entire spreadsheet is a collection of such cells. Clearly, the spreadsheet can be used to accomplish a specific task (e.g., a "what-if" analysis of a companys financial activities). Therefore, a particular collection of spreadsheets can represent a computer program. Non-procedural programs such as this cannot be described using HIPO. However, it is relatively easy to otherwise describe the structure, organization and sequence of such a program.
Some 5GL systems have also been developed. Here, it is sufficient for the analyst to define the problem requiring solution to the computer. The computer then uses "artificial intelligence" to develop the software. At this level of abstraction, the way the problem is defined represents the element of creative expression.
The way that data is organized can also be seen as a level of abstraction. This organization is often trivial, but sometimes it can be extremely complex. Data architects are often employed to design complex databases.
Finally, at the highest level of abstraction, there are ideas, methodologies, processes and algorithms. Every software system has these.
Since we already know that the next step in Altai is to search for unprotectable expression, an important point must be made concerning the choices of abstraction levels. Obviously, at the highest level of abstraction nothing is protectable. By analogy, the title and subject matter of a book is not protectable. Similarly, at the highest levels, the ideas, methodologies, processes and algorithms belonging to software programs cannot be protected. However, it is also possible to reach an abstraction level that is so low that no protection can be afforded either. By analogy, a book consists of a large group of words all of which are contained in a dictionary. Very seldom would a new word be placed into a written work. Going further, each word is composed of only twenty-six letters. On this level, there is nothing new or creative here. It is only when one goes to higher levels of abstraction that the structure, organization and sequence become unique. The same applies to software. In fact, the abstraction level required for creative expression could be quite high on the list. For example, take an individual line of source code in a particular program. It can be argued that, since the programming language has a mandatory syntax, the particular line was written the way it was due to hardware, language and data requirements. I have seen both attorneys and experts go through each line of source code in a program and try to show that it was either necessary or dictated by external factors. Therefore, since this applies to each and every line, the collection of lines of code comprising the program cannot be protectable. This is an obvious fallacy resulting from not choosing a proper level of abstraction. It is the structure, organization and sequence of these lines of code that represent protectable expression and not necessarily the individual lines themselves.
The second step in the Altai Methodology is to search for unprotectable expression in the allegedly infringed software and to remove it from consideration. This leaves a core of protectable expression to be used in the final comparison step. It is important at this point to analyze only the infringed software. Unprotectable expression in the infringing software is irrelevant to the process.
At the beginning of this article, a list of nineteen bulleted items was presented as being unprotectable. This list is reiterated here for the convenience of the reader.
Merger - As previously mentioned, ideas are not afforded copyright protection. It is only the expression of those ideas that is protectable. However, sometimes the expression of an idea cannot be distinguished from the idea itself. In such a case the idea and its expression are said to have merged. The doctrine of merger provides that only identical copying of the expression is prohibited. Otherwise, copying will not be prohibited since merger would confer a monopoly of the idea on the copyright owner free of the conditions and limitations imposed by patent law. In software, the placement of data on a screen or a report or the organization and construction of a program menu could be considered to be unprotectable under the doctrine of merger.
Scenes á Faire - Where a particular expression is common to the treatment of an idea, the doctrine of scenes á faire does not prohibit copying. For example, in a book or motion picture about World War II, Nazi uniforms and salutes such as "Heil Hitler" are not considered protectable expression. In software, use of terms such as copy, paste, cut and delete are considered unprotectable according to the doctrine of scenes á faire. Similarly, it remains for future courts to decide whether or not symbols like the trash can or waste basket to graphically indicate deletion will also be similarly unprotectable.
De Minimis Copying - When someone copies an extremely small portion of another work and includes it as part of his own new work, the new work is not necessarily a derivative of the original. Two determinations should be made. First, the amount of material copied from an allegedly infringed software package should be computed as a percentage of the entire package. Second, the importance of the copied material to the original package should be ascertained.
In Rainbow Technologies, Inc. et. al. v. Joseph Montoro and Imagine That, Inc. et. al., (12) a case in which I provided expert testimony, this issue proved critical. Plaintiff Rainbow manufactures devices called dongles that are attached to the parallel ports of personal computers. One end of the dongle plugs into the computer, and the printer plugs into the other end of the dongle. A dongle is an intelligent device that interacts with high-end expensive PC software. Subroutines contained in the software package constantly query the dongle (with ever changing questions), and the dongle answers these queries. If the correct response is not received by the PC software (i.e., the dongle is not plugged in), the software will not operate. This is a method of preventing users from making and distributing copies of software, since the software will not work without the dongle. Defendant Imagine That, Inc. purchased copies of several copy protected PC software packages along with dongles. Reverse engineering on the software and dongle was performed, and Rainbows copy protection methodology was discovered. Defendant Montoro, the president of Imagine, instructed a consultant programmer to create a software method of providing the same copy protection. He specifically instructed the programmer not to copy any Rainbow code. Rainbows original software was programmed in PC assembly language. Imagines programmer wrote a 15,000 byte program using C-language to perform the same function. The problem was that the system needed to execute 200 bytes of code from Rainbows dongle software. Imagines programmer could not find any way around this, so he created a data table that included a hexadecimal representation of Rainbows 200 bytes. Now, Imagines software could allow use of the copy protected PC software without employing the dongle. Imagine began to advertise and sell its new package. At that point, Rainbow commenced litigation.
The 200 bytes of Rainbows code was included in Imagines code as data and its execution was not meant to be invoked by Imagines software.
The 200 bytes of Rainbows code was included out of necessity as there was no other way of accomplishing the task.
The 200 bytes of Rainbows code was included because of external factors in that Imagines program had to run compatibly with the original copy protected PC software.
The 200 bytes of Rainbows code represented de minimis copying of the total of Rainbows software.
The court was unimpressed with the first three arguments. With the fourth argument, the court reasoned that although 200 bytes of code represented a very small percentage of the infringed Rainbow software, it also acted as the core of its operation. The Rainbow software would be useless without the 200 bytes, and all of the other code was merely ancillary to its operation. This also proved to be the same for Imagines software. Therefore, the court issued an injunction against Imagine.
An interesting point is that subsequently, a least squares curve fit was performed on the 200 bytes, and a mathematical equation was derived that would regenerate the 200 bytes. When this equation was converted to an algorithm and a subroutine was written and incorporated into Imagines software to compute the 200 bytes as data, the new Imagine software was found to be non-infringing.
be protectable. Some courts have held that data structures and variable names are too trivial to be afforded protection. (13) However, more case law needs to be decided. Nonetheless, it may be worthwhile making the argument that data structures and variable names are unprotectable provided that they are not expressed in a truly unique manner. Certainly, it is standard programming technique to copy data structures from one program to another to achieve compatibility between the programs.
do not afford protection. Some experts, in order to prove infringement, use automated tools to determine how many lines have been copied from one program into another. They then present this number as a percentage of the whole allegedly infringed work. This type of calculation is meaningless in that it fails to take protectability into account. In fact, it does not even eliminate blank lines and meaningless comment lines from consideration. In order to calculate the amount of copying in a meaningful way, the process must be done manually. A good way to demonstrate that the filtration process was carried out correctly is to either box and shade unprotected code or make such code a different color.
Working on higher levels of abstraction, such as with screens or reports, those portions that have been filtered out should be highlighted. A thorough look and feel analysis should be performed based upon the issue of protectable expression.
The final step of the Altai Methodology is to compare the allegedly infringing software to the filtered core of the allegedly infringed software. If substantial similarity is found, then infringement has occurred. Unfortunately, Altai is silent on how the comparison step is to be performed other than suggesting that experts be employed to advise the court.
In cases where the "look and feel" of a user interface is at issue, it has been argued that the component elements act synergistically to produce a total visual and interactive effect greater than the sum of its parts. Therefore, it is more important to examine the totality of the users experience with the software. On the other hand, where there is mostly non-literal programming elements at issue, it is less likely that there will be a "totality" to deal with since the individual elements are functionally designed. Therefore, in those cases it would be more profitable to compare the elements of the allegedly infringing software to those elements in the allegedly infringed software remaining after the filtration process.
This article proposes that the comparison step of the Altai Methodology be performed using the Whelan Test for substantial similarity as described above. Where literal copying has occurred, sections of code can be directly compared. HIPO can be used to compare non-literal software elements as well as literal software elements. The only thing that HIPO cannot do is show sequence in non-procedural programs (since in these programs, sequence is unimportant).
Apple v. Microsoft (14) is a Ninth Circuit case that introduced the concept that even where a software system consists mostly or even entirely of unprotectable elements, the combination and arrangement of such elements could still afford some protection for the software. After the Altai Methodology is used, if filtration leaves a core of protectable elements in the software, then that work is entitled to broad protection. The court will then apply the substantial similarity standard to the protectable core to prove infringement. On the other hand, if, after filtration, very few or no protectable elements exist, then the software is entitled to thin protection. Here the court will apply the virtual identity standard to any original selection and arrangement contained in the work as a whole. Therefore, almost every work is entitled to protection against virtually exact copying.
If an allegedly infringing software package can be shown to contain a virtually exact copy of an allegedly infringed software package, even were the original work to represent only a small percentage of the new work, the new work will be considered to be a derivative of the original. The new author will not be able to assert that what he copied was unprotectable. The virtual identity standard will still apply. Now, what if a new author modifies someone elses program so as to totally change its character. If it can be shown that the new author electronically edited a copy of the original work to produce the new program, the original author should be able to argue successfully that he was at least entitled to thin protection, and that the new program is a derivative work of his program. Therefore, from a technical perspective, it is important not only to ascertain whether or not protectable elements in a work are entitled to broad protection, but also how the new work was created. If an expert can show that, to create the new work, the original work was edited electronically, the thin protection doctrine can still be used.
This article discussed the technical aspects of the presentation of evidence in computer related intellectual property litigation. It described the scope of protection for software and what is protectable vs. what is not. A technical analysis as well as a "how to" perspective was presented of the Whelan Test for substantial similarity and the Altai Methodology for determining infringement that is currently used by most courts. This was done for both literal and non-literal copying of software. The article proposed that a modified version of the Whelan Test be incorporated into the comparison step of the Altai Methodology. Finally, the article discussed the technical aspects of broad vs. thin protection as followed by the Ninth Circuit in Apple v. Microsoft. It is hoped that this article will provide a continuing guideline for presentation of technical evidence by experts in computer intellectual property disputes.
© Stanley H. Kremen 1998. All rights reserved.
2. Apple Computer, Inc. v. Microsoft Corp., 779 F. Supp. 133, 135 (N.D. Cal. 1991) and Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1443 (9th Cir. 1994).

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SHOULD JUDGE BERRIGAN BE CENSURED?
I. The district court abused its discretion in refusing to recuse itself.
Defendant misstates the financial arrangement between Tulane and Judge Berrigan. She received a stipend of $5,000.00 to be spent any way she desired. She could take advantage of the prearranged group rates for transportation and lodging and have money left over to use as she pleased. This was not an arrangement that they would only reimburse expenses, with a cap of $5,500.00. Judge Berrigan was given $5,500.00.
A. The Guide to Judiciary Policies and Procedures mandates recusal by the district court.
Defendant acknowledges on page 17 of its Brief that the Guide to Judiciary Policies and Procedures, 1999 Ed., Vol II, Chapter V, Section 3.4-3(a) at page V-39 states that a judge who teaches at a law school should recuse himself from all cases involving that institution as a party. [Record Excerpts, Exhibit 11]. The Defendant also acknowledges that Bernofsky's position is that this judiciary policy mandates that Judge Berrigan recuse herself. [Original Brief, page 20]. After acknowledging Bernofsky's argument, Defendant states that it will address this argument [Tulane Brief, page 17] but then fails to address it other than to say that the standard for Section 3.4-3(a) is the same as the standard for Section 455(a). This is not the case. Section 3.4-3(a) specifically states that a judge who teaches at a law school should recuse himself from all cases involving that institution as a party. There is no mention in Section 455(a) of a judge teaching at a law school.
Although the Defendant in its Brief ignores this specific language of Section 3.4-3(a), the district court concluded that the rule does not provide clear guidance. [Record Excerpts Exhibit 5, page 4]. The district court noted that the Code of Conduct for Judges did not distinguish between a paid and an unpaid position. That distinction became irrelevant when Judge Berrigan accepted the stipend.
After discussing the ambiguities of Section 3.4-3(a), the district court stated that it would welcome clear guidance from a higher court on this issue.
The language of 3.4-3(a) is clear. When Judge Berrigan taught a law school class for a stipend, she clearly taught at a law school. The Code of Conduct states that if she teaches at a law school, she should recuse herself from all cases involving that institution as a party. The institution, Tulane, is a party in this case; therefore, the district court judge abused her discretion in not recusing herself in this case.
Tulane, at page 18 of its Brief, cites the case of Potashnick v. Port City Contr. Co., 609 F.2d 1101, 1111 (5th Cir. 1980) as if it states that the standard for interpreting Section 455(a) is the same as the standard for interpreting 3.4-3(a) of the Code of Conduct for Judges. However, the Potashnick case does not even mention Paragraph 3.4-3(a) of the Code of Conduct for Judges.
The Potashnick case does provide guidance of how Section 455(a) is an objective standard that is different from the prior provision, which was a subjective standard.
"Section 455(a) provides that a judge shall disqualify himself in any proceeding in which 'his impartiality might reasonably be questioned.' This language sets up an objective standard rather than the subjective standard set forth in the prior statute through use of the phrase 'in his opinion.' According to the report of the House Judiciary Committee, the general standard of section 455(a) was designed to promote the public's confidence in the impartiality and integrity of the judicial process by saying, in effect, that if any reasonable factual basis for doubting the judge's impartiality exists, the judge 'shall' disqualify himself and let another judge preside. 1974 U.S. Code Cong. & Admin. News, pp. 6351, 6354-55." Id.
"Clearly, the goal of the judicial disqualification statute is to foster the appearance of impartiality... This overriding concern with appearances, which also pervades the Code of Judicial Conduct and the ABA Code of Professional Responsibility, stems from the recognized need for an unimpeachable judicial system in which the public has unwavering confidence. As this court has noted, 'the protection of the integrity and dignity of the judicial process from any hint or appearance of bias is the palladium of our judicial system.' United States v. Columbia Broadcasting System Inc., 497 F.2d 107, 109 (5th Cir. 1974). Any question of a judge's impartiality threatens the purity of the judicial process and its institutions." Id.
"Because 28 U.S.C. §455(a) focuses on the appearance of impartiality, as opposed to the existence in fact of any bias or prejudice, a judge faced with a potential ground for disqualification ought to consider how his participation in a given case looks to the average person on the street. Use of the word 'might' in the statute was intended to indicate that disqualification should follow if the reasonable man, were he to know all the circumstances, would harbor doubts about the judge's impartiality. Note, Disqualification of Judges and Justices in the Federal Courts, 86 Harv.L.Rev. 736, 745 (1973)." Id.
B. Title 28 U.S.C. Section 455(a) requires recusal.
Using the standard for interpreting Section 455(a) set by the Fifth Circuit in the Potashnick case, the district court abused its discretion in not recusing itself. In the case cited in Tulane's Brief on page 18, United States v. Jordan, 49 F.3d 152, 156 (5th Cir. 1995), the Fifth Circuit stated that the Court should view the question of recusal through the eyes of a well-informed, thoughtful and objective observer, which is an objective standard. However, the Court further cited language that indicates that judges have problems being objective because they are reluctant to impugn themselves. Judge Berrigan was not objective when she concluded that she is impartial in this case.
"The Seventh Circuit (in the case of In re Mason, 916 F.2d 384, 386 (7th Cir. 1990)), recognized the problem with implementing this objective standard. Id. Judges must ascertain how a reasonable person would react to the facts. Problematic is the fact that Judges do not stand outside of the judicial system; they are intimately involved in the process of obtaining justice. Judges who are asked to recuse themselves are reluctant to impugn their own standards. Likewise, Judges sitting in review of others do not like to cast aspersions. 'Yet drawing all inferences favorable to the honesty and care of the Judge whose conduct has been questioned could collapse the appearance of impropriety standard under §455(a) into a demand for proof of actual impropriety.' Id. Accordingly, we are mindful that an observer of our judicial system is less likely to credit Judges' impartiality than the judiciary." Jordan, 49 F.3d at 156.
The Fifth Circuit in Jordan held that the reasonable person would harbor doubts about the trial judge's impartiality. It further held that the trial judge abused his discretion in not granting the motion to recuse. The Fifth Circuit in Jordan clearly follows the average person on the street objective standard for examining whether the conduct of the judge has the appearance of partiality. The standard is not whether the judge thinks his or her conduct presents the appearance of partiality, but whether the average person on the street thinks so.
Tulane invents a new standard in viewing the trial judge's impartiality, the reasonable plaintiff. Tulane argues that, because, according to Tulane, Bernofsky is not a stereotypical reasonable man, the trial judge does not have to recuse herself. [Tulane Brief at 19-21]. Under this newly invented theory of Tulane, it doesn't matter if Tulane gives the trial judge $5,500.00 or $5,500,000.00. Because Bernofsky is not a reasonable man, the trial judge is not obligated to recuse herself. Tulane, under its unique and inventive theory, examines the conduct of the plaintiff to decide if the judge should recuse herself. Apparently, under Tulane's reasonable plaintiff theory, the more reasonable the conduct of the plaintiff, the greater the obligation of the trial judge to recuse herself.
Tulane incorrectly states, on page 19 of its Brief, that Bernofsky contends that the trial judge bartered her impartiality, betrayed her oath of office, and jeopardized her very young judicial career in exchange for two weeks in Greece. In the first place, it was three weeks in Greece. More importantly, Bernofsky does not have to prove that the trial judge was partial to Tulane when she dismissed Bernofsky's case. Bernofsky merely has to establish that the average person on the street would view the judge's conduct of accepting a stipend of $5,500.00 to teach a three-week course in Greece, paid for by the defendant in the case she is litigating, as having the appearance of partiality.
Tulane then examines the reason for Bernofsky's former counsel for withdrawing from the case. [Tulane Brief, page 20]. This is totally irrelevant, and the information comes from outside of the record in this case.
Tulane next examines Bernofsky's Web site and pronounces it an evolving manifesto on the evils of Tulane and of Judge Berrigan. This is totally irrelevant, and the information comes from outside of the record in this case.
Apparently, under Tulane's recusal theory, the factors to be considered in determining if the trial judge should recuse herself are: reasons for the withdrawal of plaintiff's counsel and the characteristics of plaintiff's Web site.
The argument by Tulane that Bernofsky is "judge shopping" because he didn't seek recusal until after Judge Berrigan granted summary judgment in the 1995 discrimination case is spurious. Bernofsky did not know of Judge Berrigan's ties to Tulane until after he had filed his appeal in the earlier case. The reason Bernofsky didn't know of Judge Berrigan's ties to Tulane is because Judge Berrigan did not disclose her association with Tulane. Contrary to the allegation of Tulane, Judge Berrigan's association with Tulane was not readily ascertainable.
"...it is the obligation of a judge to disclose all facts that might be grounds for disqualification."
"It is not the duty of the parties to search out disqualifying facts about the judge . . . it is the judge's obligation to disclose all possibly disqualifying facts."
Judicial Conduct and Ethics, 2 Ed., Shaman, J.M., Lubet, S., Alfini, J.J.; Michie Law Pub., Charlottesville, VA (1995), p. 146.
...[T]wo paragraphs of the [most recent] revision [of §455] brought into §455 elements of general 'bias and prejudice' recusal that had previously been addressed only by §144. Specifically, paragraph (b)(1) entirely duplicated the grounds of recusal set forth in §144 ('bias or prejudice'), but (1) made them applicable to all justices, judges and magistrates (and not just district judges), and (2) placed the obligation to identify the existence of those grounds upon the judge himself, rather than requiring recusal only in response to a party affidavit. (Emphasis added).
Liteky v. U.S., 510 U.S. 540 (1994) at 548, 114 S.Ct. 1147, 127 L.Ed.2d 474.
Again, Tulane is looking at the conduct of Bernofsky and not the conduct of the trial judge in addressing the recusal issue. Tulane claims that Bernofsky was judge shopping because he did not request recusal until after summary judgment was granted in the first case. Bernofsky did not know of the judge's ties to Tulane at that time, and in the absence of any evidence that Bernofsky knew of the judge's ties to Tulane, Tulane states that the judge's ties to Tulane were readily ascertainable. The duty is on the judge to disclose the ties to the defendant that may be grounds for recusal. It is not the litigant's duty to investigate the judge to try to find ties to the defendant that may be grounds for recusal. Whether these grounds are readily ascertainable or not is irrelevant.
Bernofsky was not judge shopping. He just wants a judge who is not being paid by the defendant. Judge Lemelle and Magistrate Judges Wilkinson and Africk all recused themselves from this case because of their ties to Tulane. Judge Schwartz recused himself from the Rubinstein case because of his ties to Tulane. [Original Brief, pages 25-26]. It is not judge shopping to request that the trial judge have no ties to the defendant in the case.
"28 U.S.C. §455(a) states that a judge should recuse himself in any proceeding in which his impartiality might reasonably be questioned. In order to determine whether a court's impartiality is reasonably in question, the objective inquiry is whether a well-informed, thoughtful and objective observer would question the court's impartiality." Trust Co. v. N.N.P., 104 F.3d 1478, 1491 (5th Cir. 1997) (citing United States v. Jordan, 49 F.3d 152, 155-58 (5th Cir.1995)). The review of a recusal order under §455(a) is "extremely fact intensive and fact bound;" thus, a close recitation of the factual basis for the appellant's recusal motion is necessary. As this court has previously pointed out, the purpose of Section 455(a) and the principle of recusal itself is not just to prevent actual partiality, but to "avoid even the appearance of partiality." Jordan, 49 F.3d at 155. "The analysis of a Section 455(a) claim must be guided, not by comparison to similar situations addressed by prior jurisprudence, but rather by an independent examination of the facts and circumstances of the particular claim. United States v. Bremers, 195 F.3d 221, 225 (5th Cir. 1999) (citing Jordan, 49 F.3d at 157)." Republic of Panama v. The American Tobacco Company Inc. at Paragraph 19.
Although the Fifth Circuit stated that a §455(a) claim must not be guided by comparison to similar situations addressed by prior jurisprudence, Tulane offers the case of Carter v. West Publishing Company, No. 99-11959-EE, 1999 WL 994997 (llth Cir. November 1, 1999) (Tjoflat, J.), as being closely analogous to the case at bar. There are many differences between Carter and the case at bar that explain why the Circuit Judge opined that he should not recuse himself, and why this Honorable Court should hold that Judge Berrigan should recuse herself.
The first difference is the relationship to the case of the judge whose recusal is sought. In Carter, the plaintiff attempted to have Circuit Judges Tjoflat and Birch of the Eleventh Circuit recused from the case, not the trial judge. These two circuit judges were not even on the Eleventh Circuit panel that heard the appeal of the denial of class certification. The class certification issue was decided ten months later by a different panel of Eleventh Circuit judges. Carter v. West Publishing Company No. 99-11959 (llth Cir. September 7, 2000). The judges that plaintiff attempted to recuse were on the Eleventh Circuit panel that granted defendant's petition to appeal the class certification under FRCP 23(f). Judge Berrigan is the district court trial judge who was in position to rule on the merits of Bernofsky's case and did, in fact, dismiss Bernofsky's case on summary judgment.
The second difference is the timing of the payment to the judges in relation to when they took action in the case. Judge Berrigan was awarded the stipend to travel to Greece during the litigation and shortly before she granted summary judgment for Tulane. On the other hand, the trips by Circuit Judge Tjoflat to California occurred in 1983, 1984, and 1987. He participated in the decision to permit an appeal of the decision to grant class certification under FRCP 23(f) in June, 1999, 12 to 16 years later.
The third difference is that Judge Berrigan was given a stipend of $5,500.00 to spend as she saw fit. Circuit Judge Tjoflat was only provided food and lodging and reimbursed for his other travel expenses.
The fourth difference is that Judge Berrigan was sent to Thessaloniki, Greece for three weeks to teach a one hour class daily. Circuit Judge Tjoflat was sent to Palm Springs, California for three meetings in three different years to decide the recipient of the Devitt Award. There is more of a holiday flare to the three week trip to Greece. Not many people ever travel to Greece; even fewer get to spend three weeks in Greece, and fewer still receive a stipend to travel to Greece for three weeks. Judge Berrigan was generously given this rare trip to Greece in the middle of proceedings against the defendant, who was footing the bill for the trip.
Canon 4 of the Code of Conduct for United States Judges, cited on page 23 of Defendant's Brief, allows judges to receive reimbursement of expenses for the teaching at seminars "if the source of such payments does not give the appearance of influencing the judge in the judge's judicial duties or otherwise give the appearance of impropriety." (emphasis added) It was improper for Tulane to offer the Greece teaching assignment in the midst of Judge Berrigan presiding over a case against Tulane. It was improper for Judge Berrigan to accept the stipend because of the appearance of impropriety. It was improper for Judge Berrigan not to disclose the trip and stipend to the parties in this case, and it was improper for Judge Berrigan, having decided to accept the trip and the stipend, not to recuse herself.
Defendant cites the case of Cortese v. United States, 782 F.2d 845 (9th Cir. 1986) as authority for the proposition that recusal is not mandatory when the U.S. Marines, while a defendant in the case, treats the trial judge like a "Marine for a day" during the litigation. Although the Ninth Circuit in 1986 did not mandate recusal, it stated that, because the case was subject to further hearing below, "the trial judge might prefer, in the exercise of his sound discretion, to reassign the case to a different judge in light of the concerns we have expressed." The Ninth Circuit stated that the government acted improperly in presenting the judge dramatic and unnecessary hospitalities. Id.
There is no comparison between "Marine for a day" and a three week trip to Greece with stipend. The judge in Cortese did not accept a stipend. The hospitalities bestowed upon the judge in Cortese for one day do not come close to the desirability of a trip to Greece. All of the hospitalities were related to viewing property from a fighter jet. The physical exam., parachute and safety training, and briefings were all necessary to fly in a fighter jet. There was a rationale for having the judge fly in the jet. One issue was jet traffic over a piece of property.
Defendant states that the conduct was far more egregious in Cortese than Judge Berrigan's conduct because it occurred during the course of litigation. However, the case at bar was also in the course of litigation when Judge Berrigan chose to accept and not disclose Tulane's generous offer.
Contrary to the statements of the Defendant, Bernofsky is not attempting to restrict Judge Berrigan from being involved in civic organizations. However, if the association with any particular organization gets too close, then she should not preside over a case with that organization as a party to the case.
Contrary to the statements of the Defendant, Bernofsky is not manipulating the system for strategic reasons. There is no proof of this. This is mere conjecture or wild speculation. If the Court denies recusal on this unfounded basis, there would never be an occasion for recusal.
Finally, the Defendant is misguided when it states that there is a strong policy presumption against recusal. While it is true that historically there used to be a traditional "duty to sit," the legislative history of Section 455(a) indicates that this Section was meant to lessen this traditional "duty to sit" and to require avoidance of even the appearance of partiality. [Original Brief, page 24].
Therefore, Title 28 U.S.C. Section 455(a) requires that the district court recuse itself in this case.
II. The district court erred in granting summary judgment on the retaliation claim.
A. The district court erred in concluding that the negative reference letter is not an adverse employment action.
The district court clearly holds that a negative reference letter is not an adverse employment action. [Record Excerpts, Exhibit 3, page 14]. The district court went on to state that the adverse employment action is the failure of the prospective employer to hire Bernofsky. Because of this conclusion by the district court, the district court then concluded that Bernofsky offered no proof that the negative reference letter was a determinative factor in Bernofsky not being hired. This is not true. Bernofsky did offer evidence that he would have made the short list of candidates at the University of Houston but for the negative reference letter. [Original Brief, page 37].
The point is that the district court concluded that the negative reference letter is not an adverse employment action because it went on to the issue of whether or not the negative reference letter was a determinative factor in not getting hired. If the district court had correctly concluded that a negative reference letter is an adverse employment action, it would not be necessary to prove that the Bernofsky was not hired because of the letter.
The district court invites this Court to revisit its minority position of adverse employment actions stated in Mattern v Eastman Kodak Company, 104 F.3d 708 (5th Cir. 1997). [Record Excerpts, Exhibit 3, page 13]. Using the restrictive language in Mattern, the district court hesitantly concluded that a negative reference letter was not an adverse employment action. That conclusion was error by the district court. There have been no holdings on this issue that agree with the district court. On the contrary, there is legal precedent on this issue that concludes that a negative reference letter is an adverse employment action from the Ninth Circuit, several district courts and the U.S. Supreme Court in the case of Robinson v. Shell Oil Co., 519 U.S. 337 (1997). [Original Brief, pages 32-36].
This Court should reverse the district court's holding that the negative reference letter is not an adverse employment action because an employee would never be able to prove retaliation by an ex-employer in the form of a negative reference if that employee had to prove that he didn't get the job because of the negative reference. This is because the reference is used at the initial stage of the hiring process. After the reference stage is the interview stage. There is usually more than one candidate being interviewed. The final hiring decision is made after the interview of candidates. If the negative reference prevents the interview, it would be impossible to compare the interview results with the candidate that is ultimately hired. Such a scenario would allow an ex-employer to give retaliatory negative reference letters without being accountable for its actions. This result is contrary to the holding in Robinson, which decision this Court is bound to follow.
B. Bernofsky has established a prima facie case of retaliation and has established the ultimate "but for" issue of unlawful retaliation.
Bernofsky engaged in protected activity by filing a lawsuit alleging discrimination protected by Title VII. Tulane took adverse action against him by giving him a negative reference letter. There is a causal connection between the protected activity and the adverse employment action. The causal connection is stated in the letter, namely that the letter was written because of the pending litigation.
This statement in the Beal letter, in addition to establishing the causal connection element of the prima facie case, also establishes the "but for" cause that Tulane identifies as the ultimate issue of unlawful retaliation. Long v. Eastfield College, 88 F.3d 300, 305, n. 4 (5th Cir. 1996). There is no doubt that, but for the pending litigation, Mr. Beal would not have written his letter. It says so in the letter.
C. Bernofsky proves pretext by showing that the Beal reference letter was negative.
Tulane's alleged legitimate nonretaliatory explanation for the Beal letter is that it was not negative. Bernofsky has evidence of pretext, namely that the Beal letter is negative in the context of academia.
Tulane misquotes the district court in stating that the district court found that the statements in the Beal letter, that Bernofsky had sued Dr. Karam personally and that Bernofsky no longer had any research funds to support his position, were "substantially true." The district court actually said that the statements were substantially true, and even if technically inaccurate, they were not retaliatory. Thus, the district court admitted that these statements were inaccurate.
The district court erred in ignoring Bernofsky's evidence that the Beal letter, as written, was negative in the specific context of academia. Tulane and the district court contend that the letter is not negative because it could have been worse. The issue is whether the letter, as it exists, is negative. The answer is: yes, it is negative.
According to Wolinsky, the false statement that Bernofsky had sued the head of the department was the "kiss of death" for any effort by Wolinsky to help Bernofsky find work. According to Stjernholm, the false statement that Bernofsky had sued the head of the department personally was a "red flag," and he would immediately "throw out" Bernofsky's application with such a statement. [Original Brief, page 46]. This is clearly a negative statement in the context of academia, where heads of departments have the final say in hiring for their department.
The false statement that Bernofsky no longer had any research funds to support his position is also a negative statement in the context of academia, especially when referring to a research professor. Dr. Dalton, in his expert report, states that this statement casts doubt on Bernofsky's ability to contribute to the support of his research. Dr. Dalton concludes that, to protect the integrity of his department's programs and the university's reputation, he would recommend "rejecting any application that included a letter such as Mr. Beal's." [Record Excerpts, Exhibit 24, page 2]. The above evidence that the Beal letter is negative proves that the reason offered for the adverse action is a pretext for retaliation.
D. Bernofsky's retaliation claim is strengthened by his evidence of a pattern of retaliation by Tulane and its agents.
Tulane claims to be confused as to why Bernofsky has presented evidence of a pattern of retaliation to the Court. [Tulane Brief, page 46]. Bernofsky presented this series of retaliatory acts by Tulane to show the fact finder that it is more probable that Tulane was retaliating when Beal wrote his letter than if the prior retaliatory acts had not occurred. Bernofsky has no desire to relitigate his prior claims. Bernofsky is claiming no damages for the retaliatory acts stated at pages 40 to 44 of his Brief.
III. The district court erred in granting summary judgment on the defamation claim.
The false statements in the Beal letter are both false and defamatory. The fact that Bernofsky had the grant money when he was fired makes the statement that he didn't have any funds false. The statement that Bernofsky no longer had any research funds harmed his reputation in the academic community. Bernofsky was a research professor, and a statement that he no longer had any research funds would lower the opinion of others in the academic community of the ability of Bernofsky to do his job.
The second false statement, that Bernofsky sued the head of his department personally, is also defamatory in the context of academia. Professors are granted or denied tenure based on three areas, teaching, research, and collegiality. Obviously, it is damaging to Bernofsky's reputation in the area of collegiality if a false statement is made that he sued the head of his department personally.
Both Tulane and the district court used an incorrect measurement to determine if the false statements were defamatory. They both used the standard of the average person, who is not familiar with academia. The definition of defamatory in the case of Martin v. Lincoln General Hospital, 588 So.2d 1329, 1332-33 (La.App. 2d Cir. 1991) included those statements that injure one in his occupation. Tulane's two false statements injure Bernofsky in his occupation.
There was obviously publication to Dr. Wolinsky and resulting injury to Bernofsky. The only other element of defamation is that the statement was made with fault (negligence or greater) on the part of Mr. Beal. Trentecosta v. Beck, 703 So.2d 552, 559 (La. 1997). Fault is proven by the fact that Mr. Beal knew about the research funds when he wrote the letter. Also, as an attorney, Mr. Beal knew that the head of the department was not sued personally. These facts are sufficient to show fault on the part of Mr. Beal.
Therefore, Bernofsky has presented sufficient evidence of defamation to survive summary judgment.
The district court erred in granting summary judgment, and this Court should reverse and remand for trial or reverse and render and remand for damages.
Pursuant to 5th Cir. R. 32.2 and .3, the undersigned certifies this brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7).
B. _____________ lines of text in monospaced typeface.
3. THE UNDERSIGNED UNDERSTANDS A MATERIAL MISREPRESENTATION IN COMPLETING THIS CERTIFICATE, OR CIRCUMVENTION OF THE TYPE-VOLUME LIMITS IN FED. R. APP. P. 32(a)(7), MAY RESULT IN THE COURT'S STRIKING THE BRIEF AND IMPOSING SANCTIONS AGAINST THE PERSON SIGNING THE BRIEF.


text:
Section 1.72-8. Effect of certain employer contributions with respect to premiums or other consideration paid or contributed by an employee.
26 CFR § 1.72-8 - Effect of certain employer contributions with respect to premiums or other consideration paid or contributed by an employee.
§ 1.72-8 Effect of certain employer contributions with respect to premiums or other consideration paid or contributed by an employee.
(1)Amounts includible in gross income of employee under subtitle A of the Code or prior income tax laws. Section 72(f) provides that for the purposes of section 72 (c), (d), and (e), amounts contributed by an employer for the benefit of an employee or his beneficiaries shall constitute consideration paid or contributed by the employee to the extent that such amounts were includible in the gross income of the employee under subtitle A of the Code or prior income tax laws. Amounts to which this paragraph applies include, for example, contributions made by an employer to or under a trust or plan which fails to qualify under the provisions of section 401(a), provided that the employee's rights to such contributions are nonforfeitable at the time the contributions are made. See sections 402(b) and 403(c) and the regulations thereunder. This subparagraph also applies to premiums paid by an employer (other than premiums paid on behalf of an owner-employee) for life insurance protection for an employee if such premiums are includible in the gross income of the employee when paid. See § 1.72-16. However, such premiums shall only be considered as premiums and other consideration paid by the employee with respect to any benefits attributable to the contract providing the life insurance protection. See § 1.72-16.
(2)Amounts not includible in gross income of employee at time contributed if paid directly to employee at that time. Except as provided in subparagraph (3) of this paragraph, section 72(f) provides that for the purposes of section 72 (c), (d), and (e), amounts contributed by an employer for the benefit of an employee or his beneficiaries shall constitute consideration paid or contributed by the employee to the extent that such amounts would not have been includible in the gross income of the employee at the time contributed had they been paid directly to the employee at that time. Amounts to which this subparagraph applies include, for example, contributions made by an employer after December 31, 1950, and before January 1, 1963, if made on account of foreign services rendered by an employee during a period in which the employee qualified as a bona fide resident of a foreign country under section 911(a) of the Internal Revenue Code of 1954, or under section 116(a) of the Internal Revenue Code of 1939. In such a case, it would be immaterial whether such contributions were made under a qualified plan or otherwise. See subparagraph (4) of this paragraph for rules governing the determination of the amount of employer foreign service contributions to which this subparagraph applies. On the other hand, if contributions are made by an employer to a qualified plan at a time when compensation paid directly to the employee concerned with respect to the same services rendered would have been includible in the gross income of the employee, such as in the case of an employee of a State government where contributions are made in 1955 with respect to services rendered by the employee prior to the year 1939, this subparagraph does not apply to such contributions.
(i)In general. Except as provided in subdivision (ii) of this subparagraph, the provisions of subparagraph (2) of this paragraph shall not apply to amounts which were contributed by the employer after December 31, 1962, and which would not have been includible in the gross income of the employee by reason of the application of section 911, if such amounts had been paid directly to the employee at the time of contribution. Employer contributions attributable to foreign services performed by the employee after December 31, 1962, do not constitute, for purposes of section 72 (c), (d), and (e), consideration paid or contributed by the employee.
(b) Provided pursuant to pension or annuity plan provisions in existence on March 12, 1962, and on that date applicable to such services.
Amounts described in this subdivision constitute, for purposes of section 72 (c), (d), and (e), consideration paid or contributed by the employee even though such amounts are contributed by the employer after December 31, 1962.
the amount of employer contributions so identified shall be considered paid or contributed by the employee.
(ii)Alternative rule for unidentifiable contributions. If employer contributions may not be identified in the manner described in subdivision (i) of this subparagraph, the amount of employer contributions attributable to foreign services performed before January 1, 1963, and considered paid or contributed by the employee shall be determined on the basis of an estimated allocation which is reasonable and consistent with the circumstances and the provisions of the pension or annuity plan under which such contributions are made. For example, if an employee's benefits under a pension or annuity plan, which is unchanged after March 12, 1962, are determined with respect to his basic compensation during his entire period of credited service, the amount of employer contributions considered paid or contributed by the employee shall be an amount which bears the same ratio to total employer contributions for such employee under the pension or annuity plan as his basic compensation attributable to foreign services performed before January 1, 1963, with respect to which he qualified for the benefits of section 911(a) (or corresponding provisions of prior revenue laws) bears to his total basic compensation. On the other hand, if an employee's benefits under a pension or annuity plan, which is unchanged after March 12, 1962, are determined with respect to his basic compensation during his final five years of credited service, the amount of employer contributions considered paid or contributed by the employee shall be an amount which bears the same ratio to total employer contributions for such employee as his number of years of credited service before January 1, 1963, with respect to which he qualified for the benefits of section 911(a) (or corresponding provisions of prior revenue laws) bears to his total number of years of credited service.
(5)Amounts not includible in gross income of employee under subtitle A of the Code or prior income tax laws.Amounts contributed by an employer which were not includible in the gross income of the employee under Subtitle A of the Code or prior income tax laws, but which would have been includible therein had they been paid directly to the employee, do not constitute consideration paid or contributed by the employee for the purposes of section 72. For example, contributions made by an employer under a qualified employees' trust or plan, which contributions would have been includible in the gross income of the employee had such contributions been paid to him directly as compensation, do not constitute consideration paid or contributed by the employee. Accordingly, the aggregate amount of premiums or other consideration paid or contributed by an employee, insofar as compensatory employer contributions are concerned, consists solely of the (i) sum of all amounts actually contributed by the employee, plus (ii) contributions in the nature of compensation which are deemed to be paid or contributed by the employee under this paragraph.
(2) Any amount or amounts of death benefits which are treated as additional consideration contributed by the employee under section 101(b)(2)(D) and the regulations thereunder, or which were excludable from the beneficiary's gross income as a death benefit under section 22(b)(1)(B) of the Internal Revenue Code of 1939 and the regulations thereunder.
Accordingly, in the case of an employee's beneficiary, any such amount shall be added to any amount or amounts deemed paid or contributed by the employee under paragraph (a)(1) of this section and to any amounts actually contributed by the employee for the purpose of finding the aggregate amount of premiums or other consideration paid or contributed by the employee.
(c)Amounts “made available” to an employee or his beneficiary. Any amount which, although not actually paid, is made available to and includable in the gross income of an employee or his beneficiary under the rules of sections 402 and 403 and the regulations thereunder, shall be considered an amount contributed by the employee and shall be aggregated with amounts, if any, to which paragraphs (a) and (b) of this section apply for the purpose of determining the aggregate amount of premiums or other consideration paid by the employee.
(d)Amounts includable in gross income of employee when his rights under annuity contract change to nonforfeitable rights. Any amount which, by reason of section 403(d) and after the application of paragraph (b) of § 1.403 (b)-1, is required to be included in an employee's gross income for the year when his rights under an annuity contract change from forfeitable to nonforfeitable rights shall be considered an amount contributed by the employee and shall be aggregated with amounts, if any, to which paragraphs (a), (b), and (c) of this section apply for the purpose of determining the aggregate amount of premiums or other consideration paid or contributed by the employee for such annuity contract. In other words, if, under section 403(d), an employee of an organization exempt from tax under section 501(a) or 521(a) is required to include an amount in gross income by reason of his rights under an annuity contract changing from forfeitable to nonforfeitable rights, such amount, to the extent it is not excludable from gross income under paragraph (b) of § 1.403 (b)-1, shall be considered an amount contributed by such employee for the annuity contract.

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Last spring, I did a post – Trojan Horse Warrant – Fail? – that examined an opinion in which a federal judge ruled on the FBI’s application for a search warrant that would authorize them to “surreptitiously install data extraction software” on a “Target Computer” which was located somewhere outside the United States. In re Warrant to Search A Target Computer at Premises Unknown, ___ F. Supp.2d ___, 2013 WL 1729765 (U.S. District Court for the Southern District of Texas 2013). As I explained, the Texas federal judge denied the FBI’s application because he found (i) he did not have the authority to issue a warrant to search a computer outside the federal district in which he sat and (ii) the application violated the 4th Amendment’s requirement that warrants particularly describe the place to be searched and the things to be seized. In re Warrant to Search A Target Computer, supra. For more on that, see the prior post.
This case examines an opinion in which a U.S. District Court Judge in New York dealt with Microsoft’s motion “to quash a search warrant to the extent that it directs Microsoft to produce the contents of one of its customer's e-mails where that information is stored on a server located in Dublin, Ireland.” In the Matter of a Warrant to Search A Certain E–Mail Account Controlled and Maintained by Microsoft Corporation, 2014 WL 1661004 (U.S. District Court for the Southern District of New York 2014) (“In re Warrant”). So this judge was dealing with an issue similar to the one the Texas judge dealt with in the case noted above: “the circumstances under which law enforcement agents in the United States may obtain digital information from abroad”. In re Warrant, supra.
Microsoft has long owned and operated a web-based e-mail service that has existed at various times under different internet domain names, including Hotmail.com, MSN.com, and Outlook.com. . . . Users of a Microsoft e-mail account can, with a user name and a password, send and receive email messages as well as store messages in personalized folders. . . . E-mail message data include content information (message and subject line) and non-content information (such as the sender address, recipient address, and the date and time of transmission). . . .
Microsoft stores e-mail messages sent and received by its users in its datacenters. Those datacenters exist at various locations both in the United States and abroad, and where a particular user's information is stored depends in part on a phenomenon known as `network latency’; because the quality of service decreases the farther a user is from the datacenter where his account is hosted, efforts are made to assign each account to the closest datacenter. . . . Accordingly, based on the `country code’ the customer enters at registration, Microsoft may migrate the account to the datacenter in Dublin. . . .When this is done, all content and most noncontent information associated with the account is deleted from servers in the United States. . . .
The non-content information that remains in the United States when an account is migrated abroad falls into three categories. First, certain non-content information is retained in a data warehouse in the United States for testing and quality control purposes. . . . Second, Microsoft retains `address book’ information relating to certain web-based e-mail accounts in an `address book clearing house.’ . . . Finally, certain basic non-content information about all accounts, such as the user's name and country, is maintained in a database in the United States. . . .
In re Warrant, supra (quoting an attachment to the warrant).
(`GCC’) team to respond to a search warrant seeking stored electronic information. . . . Working from offices in California and Washington, the GCC team uses a database program or `tool’ to collect the data. . . . Initially, a GCC team member uses the tool to determine where the data for the target account is stored and then collects the information remotely from the server where the data is located, whether in the United States or elsewhere. . . .
Microsoft complied with the search warrant to the extent of producing the non-content information stored on servers in the United States. However, after it determined that the target account was hosted in Dublin and the content information stored there, it filed the instant motion seeking to quash the warrant to the extent that it directs the production of information stored abroad.
perhaps deceptively so. It notes that, consistent with the [Stored Communications Act (“SCA”)] and Rule 41 of the Federal Rules of Criminal Procedure, the Government sought information here by means of a warrant. Federal courts are without authority to issue warrants for the search and seizure of property outside the territorial limits of the United States. Therefore, Microsoft concludes, to the extent that the warrant here requires acquisition of information from Dublin, it is unauthorized and must be quashed.
Internet Service Provider (`ISP’) like Microsoft to disclose to the Government customer information or records is governed by the Stored Communications Act (the `SCA’), passed as part of the Electronic Communications Privacy Act of 1986 (the `ECPA’) and codified at 18 U.S. Code §§ 2701–2712. That statute authorizes the Government to seek information by way of subpoena, court order, or warrant. The instrument law enforcement agents utilize dictates the showing that must be made to obtain it and the type of records that must be disclosed in response.
As the judge explained, 18 U.S. Code § 2703 defines three methods by which the government can obtain “customer information or records”: a grand jury, trial or administrative subpoena; a court order; or a search warrant. In re Warrant, supra.
Under § 2703(b), it can use a subpoena to compel the ISP to produce “basic customer information, such as the customer's name, address, Internet Protocol connection records, and means of payment for the account . . . ; unopened e-mails that are more than 180 days old . . ; and any opened e-mails, regardless of age”. In re Warrant, supra.
Under § 2703(d), the government can require an ISP to disclose all the “information subject to production under a subpoena and also `record[s] or other information pertaining to a subscriber [ ] or customer,’ such as historical logs showing the e-mail addresses with which the customer had communicated”. In re Warrant, supra. If the government obtains a warrant under § 2703(a), it can compel an ISP “to disclose everything that would be produced in response to a section 2703(d) order or a subpoena as well as unopened e-mails stored by the provider for less than 180 days.” In re Warrant, supra. The warrant must be issued in accordance with the procedures set out in Rule 41 of the Federal Rules of Criminal Procedure. In re Warrant, supra.
there were no constitutional limits on an ISP's disclosure of its customer's data, and because the Government could likely obtain such data with a subpoena that did not require a showing of probable cause, Congress placed limitations on the service providers' ability to disclose information and . . . defined the means that the Government could use to obtain it.
`warrant’ and refers to the use of warrant procedures, the resulting order is not a conventional warrant; rather, the order is a hybrid: part search warrant and part subpoena. It is obtained like a search warrant when an application is made to a neutral magistrate who issues the order only upon a showing of probable cause. On the other hand, it is executed like a subpoena in that it is served on the ISP in possession of the information and does not involve government agents entering the premises of the ISP to search its servers and seize the e-mail account in question.
In re Warrant, supra. In other words, it is an “SCA warrant”, not a 4th Amendment warrant. In re Warrant, supra.
view that the SCA does not implicate principles of extraterritoriality. It has long been the law that a subpoena requires the recipient to produce information in its possession, custody, or control regardless of the location of that information. See Marc Rich & Co., A.G. v. United States, 707 F.2d 663, 667 (U.S. Courtof Appeals for the 2d Circuit 1983) (`Neither may the witness resist the production of documents on the ground [they] are located abroad. The test for production . . . is control, not location’. . .); Tiffany (NJ) LLC v. Qi Andrew, 276 F.R.D. 143 (U.S. District Court for the Southern District of New York 2011) (`If the party subpoenaed has the practical ability to obtain the documents, the actual physical location of the documents -- even if overseas --- is immaterial’). . . . To be sure, the `warrant’ requirement of section 2703(a) . . . requir[es] a showing of probable cause not required for a subpoena, but it does not alter the basic principle that an entity lawfully obligated to produce information must do so regardless of the location of that information.
thus appears to have anticipated that an ISP located in the United States would be obligated to respond to a warrant issued pursuant to § 2703(a) by producing information within its control, regardless of where that information was stored.
a service provider is under no obligation to verify the information provided by a customer at the time an e-mail account is opened. Thus, a party intending to engage in criminal activity could evade an SCA Warrant by . . . giving false residence information, thereby causing the ISP to assign his account to a server outside the United States.
Second, if an SCA Warrant were treated like a conventional search warrant, it could only be executed abroad pursuant to a Mutual Legal Assistance Treaty (`MLAT’). . . . [N]ations that enter into MLATs . . . generally retain the discretion to decline a request for assistance. For example, the MLAT between the. . . . United States and the United Kingdom allows the Requested State to deny assistance if it deems that the request would be `contrary to important public policy’. . . . Treaty on Mutual Legal Assistance in Criminal Matters, U.S.-U.K., Jan. 6, 1994, S. Treaty Doc. No. 104–2 (`U.S.-U.K.MLAT’), Art. 3(1)(a) & (c)(i). . . . [A]n exchange of diplomatic notes construes . . . `important public policy’ to include `a Requested Party's policy of opposing the exercise of jurisdiction which is in its view extraterritorial and objectionable.’ . . .
Finally, in the case of a search and seizure,. . . any search must be executed in accordance with the laws of the Requested Party. . . . U.S.-U.K. MLAT, Art. 14(1), (2). This raises the possibility that foreign law enforcement authorities would be required to oversee or even to conduct the acquisition of information from a server abroad. . . .
[A]s burdensome and uncertain as the MLAT process is, it is entirely unavailable where no treaty is in place. . . . [N]ot all countries have entered into such agreements with the United States. Moreover, Google has reportedly explored the possibility of establishing . . . server farms located at sea beyond the territorial jurisdiction of any nation. . . . Thus, under Microsoft's understanding, certain information within the control of an American service provider would be completely unavailable to American law enforcement under the SCA.
extraterritoriality are simply not present here: an SCA Warrant does not criminalize conduct taking place in a foreign country; it does not involve the deployment of American law enforcement personnel abroad; it does not require even the physical presence of service provider employees at the location where data are stored. At least in this instance, it places obligations only on the service provider to act within the United States.
[e]ven when applied to information that is stored in servers abroad, an SCA Warrant does not violate the presumption against extraterritorial application of American law. Accordingly, Microsoft's motion to quash in part the warrant at issue is denied.