Recently in Law Category

BeSpacific has a link to a paper written by sociologist Gregory D. Squires and published by the Economic Policy Institute that proposes that “Subprime lending and fringe bankers are concentrated in communities with high unemployment rates and declining housing values, and they serve to reinforce those neighborhood characteristics.” I suppose it doesn’t come as a surprise that more of these risky loans were made to people in riskier financial circumstances — that is, after all, what makes the loan “subprime.” The long-term effect of high foreclosure rates on homeowners and the communities in which they live is going to be troubling to watch and difficult, perhaps impossible, to stop.

A friend of mine passed on a link to this great little primer that explains how the subprime mortgage crisis got started, in stick-figure cartoon format. (Some strong language.) The only thing it’s missing is a few more panels where the borrower is told he’s in at least as bad a situation as the investor. If you’re looking for more a more formal and detailed review of the situation, there’s an article at Wikipedia.

Today, in the Department of Potential Global Crises We Like To Think Underfunded Government Offices, IGOs and NGOs Are Dealing With: Avian Influenza. More specifically: human-to-human transmission of H5N1 Avian Influenza in Pakistan.

Remember bird flu? It seems like a year or so ago much attention was given to the fact that the H5N1 flu virus, which was spreading, well, virulently among bird populations (especially in Asia), might spread to humans, creating the next flu pandemic. And, as predicted, some humans who worked with infected bird species did get sick, and many of the ones who got sick died. I even remember hearing questions about whether some of them had transmitted the virus to their families.

But since then, we seem to have gotten our heads planted comfortably back in the sand. Yet outbreaks continue, and the situation continues to look dire.

Now, we have an outbreak in Pakistan where, from the currently available evidence, it appears that a veterinarian working with infected birds caught the virus and transmitted it to at least one of his brothers. Two men died ten days apart (one of whom may have been the vet, or maybe not — it's not clear from the reports). The ten-day lag tends to indicate that the disease spread from one person, to another, to another. There have also been recent cluster infections in other Asian countries where human to human transmission is suspected.

When it can do that easily is when all hell will break loose.

I've heard of various interagency "drills" promoted as evidence that governments and health providers are getting ready for the outbreak of pandemic. Those drills mainly seem to be exercises in vaccinating a whole lot of people at once, a capability that will be nice to have but which is useless at the forefront of an outbreak because a vaccine won't exist until weeks, maybe months, after an outbreak begins.

What I haven't heard of are the kinds of preparations that will actually help reduce transmission: for example, the stockpiling of masks, gloves, disinfectants, and other simple tools to help reduce public exposure. There will be a run on such supplies the moment an outbreak is confirmed, and there's no reason to think that manufacturing plans have such excess capacity that they will be able to increase production to anything resembling the scale that will be demanded in a crisis. There won't be enough to go around, and yet we will need to count on practical measures like masks and hand-washing, and not Tamiflu or vaccine, to save people in the first wave of a flu pandemic. (Also interesting - Scott McPherson thinks telecommuting won't work in a pandemic.)

The flu is going to kill many more people than terrorism will, but preventive measures against the flu will never get the kind of funding and support antiterrorism measures do. I expect this will prove to be a mistake.

David Bernstein has a Volokh Conspiracy post remarking on the apparent decision by homebuilder Brookfield Homes to collect expectation damages rather than liquidated damages from prospective buyers who walk away from home purchase contracts.

Translated into English: Instead of just taking the earnest money deposit, Brookfield apparently intends to sue buyers in default for the difference between their contract price and the price for which the home actually sells. Is this true? Well, it looks that way from the quote of a certain Mr. Hughes, in a WSJ article I can't access (I don't subscribe), quoted in a post here at The Housing Bubble Blog. But without seeing the actual contract provisions, I can't tell how much leeway Brookfield has given itself.

It wouldn't surprise me to see some changes in homebuilders' marketing and legal strategies as markets fluctuate. But as David Bernstein and the commenters on his post suggest, the market will probably weigh against decisions like Brookfield's, especially if the market softens further and puts even greater competitive pressure on builders.

I haven't yet heard of builders demanding damages greater than the earnest money deposit here in Colorado. Builders may want to respond to softening markets by increasing their earnest money requirements in an effort to encourage buyers to financially commit themselves more strongly to their contracts, but at the same time fewer prospective buyers will be willing to put up larger deposits and assume greater risks. Requiring a big deposit can scare customers away.

Supplement: Bernstein wonders why the builders don't protect themselves against defectors and market price fluctuation by waiting until the house is almost done before finding a buyer. The answer is that a house is worth more to a buyer who can select customized "upgrade" packages for the house, and it's too late for that once construction has gotten far along. For example, if a buyer wants a nine-foot basement instead of an eight-foot basement, the builder needs to know before excavation is done.

Dave Winer regrets not having had a lawyer review a deal.

Get it in writing, and have a lawyer review it. Ask Jason Calacanis, who wisely says if a deal is worth doing, it's worth having a lawyer write it up. If it's not worth that, then don't bother.

Dave writes from the perspective of someone who feels he was taken for a ride, but it's also good to have a lawyer involved even if the people on the other side of the deal have the utmost integrity. Honest misunderstandings happen, and a good lawyer can help avoid them before they happen. No one can avert all possible misunderstandings, but one can reduce the risk and, in the process, increase the likelihood that the agreement between the parties has the intended legal effect.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit rejected the Federal Communication's Commission's "broadcast flag" rule yesterday. [Opinion here.] Ernie Miller is tracking the online press reports.

The "broadcast flag" is a copy protection mechanism for digital TV broadcasts. The FCC's regulations required manufacturers of digital TV receivers to design their products to recognize when a digital TV transmitter had set the "broadcast flag" on a digital TV signal. If the digital TV receiver detected the "broadcast flag," it was required to send the content only to certain digital outputs that would recognize the broadcast flag or to an analog output. It permitted receivers to record the TV broadcast only if they could do so in a way that would make it impossible for another device to copy the recording.

In other words, the rule is designed to prevent people from recording a digital TV transmission on a computer and then sharing it with anyone else or taking clips from it. The rule works by requiring manufacturers to make equipment in a way that honors the demands of TV producers.

The Court of Appeals held that the FCC lacked authority to regulate what equipment does to recordings of transmissions after receiving them. The FCC's job is to regulate how transmissions work, not how people use recordings.

The FCC may continue to press the case, and the intervening Motion Picture Association of America (MPAA) will most likely request en banc review or petition the Supreme Court for certiorari even if the FCC does not. If the courts deny further review or decide against the MPAA and FCC, the MPAA will lobby Congress to extend the FCC's authority. MPAA could ask Congress to codify the broadcast flag regulations in a statute, but it might prefer to have the FCC continue oversight of the rules and retain the ability to change them.

I oppose the notion that the MPAA should dictate how computer equipment is built and how it treats data, and I don't like what I perceive to be a general atmosphere of overreaching at the FCC, so I like the D.C. Circuit's ruling. I also think it's founded on good legal analysis and reached the right conclusion as a matter of law.

The "broadcast flag" regulations appear in the Code of Federal Regulations at 47 C.F.R. 73.9000-73.9009 and 47 C.F.R. 76.1901-76.1909.

See also Susan Crawford's discussion of the ruling and FCC jurisdiction, with a link to her article on the topic.

A programmer named Daniel Wallace has filed a complaint in the U.S. District Court for the Southern District of Indiana claiming that the General Public License violates U.S. antitrust law. Wallace is, for now, acting as his own attorney. My knowledge of antitrust law is a little rusty, but my initial hunch is that Eric Goldman is right that this case is not going to be around for long.

Correction: The post on Eric Goldman's blog is by John Ottaviani, a guest blogger. Sorry, John!

Seth Finkelstein has a commentary on section 202 of the Family Entertainment and Copyright Act.

My summary of Seth's take on the Act: The Act creates an exception that's about as narrow as can be, and the only winners are a lobby of religious conservatives. On the other hand, there are no big losers. But it's too bad that the Act wasn't set up in a way that would have created or codified more freedoms regarding how we use material that's protected by copyright.

[Update: EEJD blog criticizes the tone of Seth's post: "These additional excerpts [from Seth's post] seem to communicate that Seth's problem has more to do with the fact that the bill is aimed at 'religious prudes' than the fact that the bill gives more control to consumers…"]

Section 202, you may or may not recall, makes it clear that people can legally sell equipment and software that "filters" DVD recordings of movies as they're being played. People who want to watch, say, "violence-free," "cursing- and profanity-free," or "sexual content-free" versions of movies can do so without keeping a finger on the fast-forward button, because they can buy these "filters" that will tell their DVD player what parts to skip automatically. The reason this was a potential copyright problem is that it looked like interposing that kind of technology might result in a derivative work of the original — something the copyright law forbids. (I vaguely recall a case in which someone produced "cleaned-up" VHS videotape copies of films, an even-bigger infringement problem because it resulted in an additional copy of most of the videorecording; the new law still doesn't allow that.) The boundaries weren't very clear. The Act eliminates the risk of infringement for a very narrow set of activities.

Ed Felten has a pragmatic censorship & free speech analysis of Sections 201 and 202 of the Family Entertainment and Copyright Act. He concludes that the Act does not promote censorship. Alan Wexelblat (Copyfight) appears to agree, and has other links.

The Act seems tailored to let people choose what they want to watch in a movie, and to make DVDs that will let people easily skip scenes they don't want to watch. It requires that the end-user ultimately make the decision about whether to skip scenes. I like that the law implicitly rejects any "moral rights" of a copyright holder by which the copyright holder could force people who buy a movie to watch the whole thing. That's good because the U.S. copyright system is not based on any moral rights in the copyright holder (there is only one exception to this policy I can think of); U.S. copyright law is only supposed to create economic incentives for creative expression. Under the Family Entertainment and Copyright Act, the copyright holder in a movie still gets paid for the whole movie, which satisfies the policy of the copyright law.

There are still social questions that arise from this kind of law. For example, if people can simply edit out controversial parts of a film, does that not overly allow people to insulate themselves from artistic efforts to address difficult social issues?

I think the answer is, Maybe so, but copyright law doesn't have anything to say about that.

... is that everyone else has it really well covered.

The Mercury News is running an editorial about (Cal.) Superior Court Judge James Kleinberg's ruling in Apple v. Does just over a week ago. [Via Donna Wentworth.]

Let's be careful with the extent to which we call this case a "precedent." It has no authoritative precedential force within the law, because it comes from a trial court. But there is a possibility that an important appellate court could agree with the reasoning, establishing more authoritative precedent. Or, other trial courts could simply find the reasoning persuasive in the absence of other more binding authority.

When should website operators who post information they receive about business activities be able to claim either:

• A privilege not to disclose the identity of their sources?
• An immunity from civil suit or criminal penalties for disclosing information?

I'll call the first of these a "journalistic privilege" and the second "journalistic immunity." In this post I'm just going to talk about privilege, but it helps to remember that we are talking about at least two kinds of protections. Still a different kind of privilege protects publishers from prior restraint in most cases.

Ernest Miller (The Importance Of....) has an idea for an answer to those questions above. It's pretty simple. But it may be too simple, and efforts to refine it tend to lead to some of the more complicated inquiries that I think he'd prefer to leave out of the test.

Mr. Miller argues in this post for a standard that would make it very easy to obtain legal protection for disseminating information one receives from business or government insiders. On Mr. Miller's view, we should not focus on the speaker, the content of the speech, or the medium of communication. See his post for a quite articulate summary of that part of the argument. (Mr. Miller cites Linda Berger, Shielding the Unmedia: Using the Process of Journalism to Protect the Journalist's Privilege in an Infinite Universe of Publication, 39 Hous. L.R. 1371 (2003)). Mr. Miller and Prof. Berger argue for approaches where what counts is whether the speaker is "engaged in the process of journalism."

Miller and Berger argue for different standards. Prof. Berger provides a pragmatic (but still a bit fuzzy) outline of what sorts of behaviors and attributes characterize the "journalistic processes" that law should protect. Mr. Miller argues that Prof. Berger's standard should really be stripped down to just two or three elements. I'm going to focus on his argument below and leave Prof. Berger's aside, mainly because I haven't had time yet to give her article the closer reading it deserves.

Prof. Berger's article also provides a very handy historical summary of journalistic privilege (or its absence) under federal and state law. Note that she and Mr. Miller are arguing for reformulations of privilege law — that's really another way of saying "new law". I'm not "dissing" either's argument, which may be sound and valid from the perspectives of First Amendment values — specifically, the free flow of information — and jurisprudential efficacy. I'm just saying their arguments are not what the courts have been doing so far.

So how should we tell who is "engaged in the process of journalism?" Mr. Miller writes, "The 'press' and journalism boils down to two things: gather information and publish it publicly." So, he asks, "Isn't the only process we need to know about is that information was gathered and then it was publicly published (or there was intent to publicly publish)?"

If I'm reading Mr. Miller's post right, the elements of the journalistic privilege would go like this:

If

• Insider communicates information to Outsider; and
• Outsider
  • publicly publishes the information or
  • intends to publish it publicly;

• Outsider cannot be compelled by law to identify Insider.

It looks simple, but there are still some tricky parts.

For example, there's still some question what it would mean to "publish" information. Assume that any widely disseminated medium counts as publishing — including publicly accessible websites. That does away with the blogger/journalist issue. But the bigger problem word in this test is "publicly." Is it "publicly publishing" if Outsider only shares the secret information with his or her family? What if Outsider puts together a "publication" that consists of a for-profit newsletter distributed only to a trade group? Or only to certain competitors of Insider's employer? When does the further dissemination of the information become a "public" publishing?

Mr. Miller's test also has a subjective element, in that Outsider's subjective intent to publish would qualify Outsider for the privilege. Suppose we have an Outsider who has engaged in some of the more questionable practices described two paragraphs above. When Outsider gets a subpoena (because yet someone else leaked Outsider's newsletters or a copy of Outsider's private website), is it enough for Outsider to say, "I planned to release that information to the public at large next week"?

The hunt for a description of "public" smells to me like a search for the kinds of journalistic processes that we consider to be more for the benefit of the public at large than for select groups. If we go down that path, it dredges up the questions of disclosure, journalist track-records, and other scrutiny of Outsider that Mr. Miller's proposed test aimed to avoid in the first place.

Even if these questions show up difficulties in Mr. Miller's proposed test, he could quite aptly point out that it's often better to have one hard-to-apply word or element in a law than to have two, five, or ten, especially when that law is designed to protect the flow of information and public discourse. Maybe that's true, or maybe this topic is trickier than it looks so that we may have to put up with more complexity. Based on what I've read so far, I suspect Prof. Berger's approach admits of more of that complexity. On the other hand, her approach may be more difficult to apply, and she may overly favor "established media" outlets.

All that, and we haven't even reached the core policy issues, though I'm trying to illustrate some of them with the hypothetical questions I've asked in the last few paragraphs. You can find more detailed discussions elsewhere (Prof. Berger's article might be a good place to start).

Notice that Insider still gets no special protection. That's the same as in current law. If Insider's employer can identify Insider through other means, Insider is still in trouble unless some kind of "whistleblowing" law applies. Regardless of how we treat the journalist, I don't think the rules that apply to Insider should change. Except in extreme circumstances, no business should be compelled to employ someone who leaks private business information.

If you're interested in the topic and you haven't read Mr. Miller's post already, have a look at it and think about it for a while. If you're really interested in the legal background, also look at Prof. Berger's article.

Peter Burrows, BusinessWeek's Computer department editor, has a column describing why Apple's choice to sue fan-driven websites is a bad business call that "could tarnish the Apple brand." ("Memo to Apple: Lay Off Your Fans")

There's a certain irony to this. Remember the Orwell-inspired ad that ran during the 1984 Super Bowl, that one that depicted Apple as the free-thinking company breaking the Big Brother dogma of the computer industry? Through conscious marketing efforts, Apple has long stood for innovation and creativity, and has been embraced creative sorts like artists and writers -- not people who usually care for big corporations pursuing lawsuits against 19-year-olds. That may vastly oversimplify the nuanced legal issues Apple's lawyers are trying to address, but it could well be the overriding impression that results.

A large QuickTime .mov file of the 1984 advertisement is available here. There are smaller copies floating out around the internet.

By now, everyone who reads law and technology related weblogs is aware that a California court has permitted Apple Computer, Inc. to issue subpoenas to weblog author-editors and ISPs. Apple aims to discover who leaked information about an Apple project called "Asteroid." The court order rejecting the webloggers' motion to quash the subpoenas is here [via EFF].

To comply with the subpoenas and order, the webloggers will have to disclose the sources underlying the articles they published. The webloggers are not currently defendants in the lawsuit — the defendants are the people from whom the webloggers received the information in the first place. Apple might, under the circumstances, be able to join the webloggers as defendants for disseminating trade secret information. But it currently seems that Apple's primary goal is to rout out its employees who leaked the information, firing them and maybe (or maybe not) maintaining its suit against them.

Here's a very non-exclusive list of what some people have had to say about this case in the legal and technical blogosphere since the court released its ruling:

• Denise Howell (Bag and Baggage): Links and information.
• SoCal Law Blog: Brief comment. (I would not normally endorse a weblog so drowned in advertisements that one can scarcely find the text. –tph)
• JMoore (JurisPundit): JMoore was hoping for some analysis on the role of blogger-as-journalist, an issue the judge sidestepped by holding that no journalistic privilege at all applied in the case.
• News release, Electronic Frontier Foundation. The EFF provided legal support to the webloggers.
• Donna Wentworth (Copyfight): Donna criticizes the judge's determination that no First Amendment journalistic privilege applied in the case, and links to—
• An exchange [one] [two] between Susan Crawford and Ernest Miller on the proper scope of First Amendment journalistic privilege.
• Dan Gillmor worries that if this ruling is upheld on appeal (assuming there's an appeal), business reporting will become too dangerous for reporters.
• The Mercury News's Mike Langberg asks Apple to reconsider its legal approach toward enthusiasts because it communicates arrogance and attacks people who love Apple and its products.

It seems to me that the main thing that really bothers Apple enthusiasts about these subpoenas (as well as some other claims Apple has been pursuing against enthusiasts who spread leaked information) is that they convey the impression that Apple wants to punish webloggers who are enthusiastic about its products. This impression relates to Langberg's argument in his editorial. As I've followed the news and commentary, I've been wondering about Apple's business decision to proceed with these lawsuits more than the nuances of the legal doctrines that apply (though the latter are important). I have to admit that my first impression of Apple's lawsuits was that they seemed eager to stifle the very kinds of enthusiasts who provide valuable word-of-mouth marketing for their products — the kind of marketing that you just can't buy.

Apple hasn't even tried to justify its strategy to the public, and if it tried to do so using one of those "we just have to protect our intellectual property in all cases" arguments, I'd be sorely disappointed. Still, I've tried to imagine why Apple might want to pursue these cases knowing that there is some risk that it might alienate some enthusiasts. What might the people in charge of this policy at Apple be thinking? My first impression is that Apple likes word-of-mouth and media hype for its products, but it really wants to be able to control that hype itself. Is that just the symptom of obsession for control, or can one justify the desire for control?

In some circumstances, Apple might want to conceal new product plans because it wants the maximum lead time in the market before competitors could develop a competing product. But this case doesn't look to me like a situation involving intense competition in a particular market space. The secret information at issue in Apple v. Does relates to an improvement to theGarageBand music sequencing software in the iLife software suite.

Maybe there was a major concern about competitive advantage for Apple in this case — I don't pretend to know all about the market for music sequencing software. But it looks to me like Apple is trying to enforce a blanket policy regardless of whether this particular leak is comparatively a "big deal."

Concerns about employee discipline provide one potential justification for pursuing "leakers" even if the leak didn't cause severe damage. Assuming that Apple has a blanket policy of secrecy — and it has had just such a policy since the 1970s — it probably wants to be very sure that it employs only people who can honor that policy, and it probably wants to fire those who don't honor it. It's probably wrong to label such firings "retaliation," since Apple has reasons other than spite for discharging people who break their agreements. For example, distributing certain information about forthcoming Apple products may in fact cause Apple harm if it tips off competitors. Also, leaking information about the company's projects may hurt morale, given that Apple has many employees who do act very cautiously to protect information about its development efforts. They probably don't want to feel that their own co-workers are disseminating the very information that they are trying to protect. I don't know how much of a problem that is because I don't know anyone who works at Apple.

I think Apple should have some right — probably a right with a lot of enforcement leverage — to demand confidentiality from its employees. I also think it should be able to use legal tools to do so. I'm just not sure where the line should be drawn as a policy matter. Maybe those tools should be limited, or maybe they should have a broad reach except in those cases that would classify as "whistleblowing."

I've seen a lot of discussion about whether the webloggers affected by subpoenas in Apple v. Does should be treated as journalists. Most people assumed the court's ruling would focus on that question. But the court concluded that regardless of webloggers' status, disclosures by Apple's employees about Apple's forthcoming products didn't implicate a journalistic First Amendment privilege at all.

That conclusion raises the question, When do communications to a journalist (however that word may be defined) about a company's business or research activities obtain a privilege such the journalist cannot be compelled to identify the source of the information? That question is probably more important than the journalist/weblogger question, and it's the core of a conversation that's started over the weekend (see, e.g., Crawford and Miller), and it's an important one.

I'm not sure where I stand on that issue, and if I have enough time this week I'll play around in this space with some possible arguments related to that question. I don't want a policy under which companies designate everything under the sun as "trade secrets" to prevent dissemination, but I also don't want a policy under which employees can feel free to share whatever company secrets they want as long as they're talking to a journalist.

In the meantime, I'll look forward to reading more arguments about the legal standards that apply and about Apple's policy in particular. I'll be especially curious to read any arguments people might test out in support of Apple's policy, since I didn't exactly work philosophical or rhetorical wonders in its favor earlier in this post. Before we can really evaluate the legal standards that apply, I think we need to try to understand why Apple might want to draw close the cloak of secrecy. If we don't give serious attention to that viewpoint, the perspective of the business that generates the information that it then seeks to protect, our discussion of the legal standards will be under-informed and imbalanced.

Today I attended a lunch meeting of the Real Estate Law Section of the Boulder County Bar Association. I'd been expecting a dreary discussion, but it actually turned out to be an interesting topic that prompted some animated conversation.

Ann Althouse has this interesting this post about the article "Our Godless Constitution," in The Nation. She shows how the article incorporates shoddy scholarship and, more importantly, explains how the article's inflammatory approach will utterly fail to explain the importance of separation of church and state to religious people. There are many arguments, including those adopted by the founders of the United States, that would demonstrate the social and religious importance of the separation of church and state.

Andrew Raff's IPTAblog has an article following up on the controversy that blew up last month when Martin Schwimmer asked Bloglines to remove his Trademark Blog from the Bloglines service. He frames and summarizes the issues well, I think.

My jaw dropped a bit, though, at the Sieblogs site that Andrew linked to. Sieblogs aggregates content from what must be a collection of hundreds of weblogs and mass media sources. It then displays that content by category. There's nothing on the main page or entry page that indicates the original content author. That's a violation all of the Creative Commons attribution licenses, and the sheer copying and re-display of the content is a violation of general copyright law, although it is something many weblog authors would permit if asked. Even though there are no advertisements yet, the utter failure to credit the author and source weblog really surprised me. They at least link to the original article.

Andrew Cohen has this column in the Denver Post today about the demise of Gorsuch Kirgis LLC, one of Denver's oldest law firms. Cohen credits the firm's long history to its earlier successes in maintaining a genuine partnership, one based on personal relationships rather merely "the pursuit of cash collections," its renown as being "one of the more humane places to practice law in town." He blames its impending dissolution on its failure to maintain that kind of workplace. In his story, the firm didn't have control over all of the factors that eventually led to its demise, but it did over some.

JDBliss posted this interview with Ernest Svenson, a/k/a Ernie the Attorney.

Ernie the Attorney's weblog was one of the first that I began reading back in 2002, and I've long admired his efforts to encourage improvement in law practice through better use of technology and other practices. He's looking forward in a business that spends most of its energy looking backward.

Slashdot linked a story by the BBC reporting that the U.S. hosting service The Planet terminated the contract of the Iranian Student News Agency (ISNA).

According to the article, ISNA is "semi-official" and may have some connections to the Iranian government. (If I recall correctly, the fundamentalist revolution in Iran called itself a "student" revolution, which may have some connection to the name of the organization.) Assuming so, the policy concerns, from the perspective of the United States, are different from a termination of a more liberal website.

There may be no effective way for a U.S. ISP to distinguish between the two kinds of websites, though, nor is it at all clear that the U.S. government should systematically engage in content-based discrimination between them. From a practical standpoint, ISP operators can't read Farsi and are unfamilar with the culture and politics of Iran, and can't be expected to make those calls anyway. It's not surprising that some ISPs are taking a bright-line approach and terminating accounts of Iranian entities and Iranians not resident in the United States, even if it silences some voices that the United States would probably like to amplify.

Assume an Iranian national resided legally in the U.S. and used a webpage hosted in the United States to write in favor of the existing Iranian government. Can the ISP terminate the contract because he is an Iranian national? Can the government require the ISP to do so without running afoul of the First Amendment? What if the Iranian national moves back to Iran?

Donna Wentworth posted a link to the book review Righting Copyright: Fair Use and "Digital Environmentalism" by Robert S. Boynton, published by Bookforum. The book review highlights four books on improving the balance in U.S. copyright law between exclusive rights and the public domain.

The review surveys the social and legal context, identifies the problems the books' authors try to address, and tries to explain (in relatively small space) why they are problems. It's a good survey, and from it I can tell that I will need to add some books to my reading list.

The term "digital environmentalism" was new to me, but seems very useful. Rather than explain it clumsily here, I simply refer you to Boynton's articulate introduction to the topic (it's in his 14th paragraph by my count, if you want to try to skip straight to it).

The New York Times (Michael Luo) is reporting that OCLC is suing a New York library-themed hotel because the hotel is arranged (and stocked with books!) according to the Dewey Decimal System.

Or perhaps I should say, The Dewey Decimal System[TM]. Yes, that's right. OCLC, that nonprofit library cooperative that makes interlibrary loan so easy and makes it possible to locate a book or article just about anywhere, claims a trademark on the Dewey Decimal System.

Dewey apparently copyrighted his system, too, though he invented it in 1874, so the copyright should be long expired (at that point in time, if I recall my changes in copyright law correctly, he wouldn't have been able to get more than 14 to 28 years of copyright protection). A trademark, however, can be repeatedly renewed.

No time for analysis right now, except to say that I'm a little skeptical of this case. In any event, the treble profits damages demand strikes me as a little obnoxious, even though I know plenty well that it's customary to ask for maximum damages allowed by law. Still, this seems to me to be one of those situations where the lawsuit to enforce the trademark could tarnish that very trademark.

As for the hotel owners, well, maybe they should use the LC system next time.

The NYT article is available here -- free registration required, as usual.

In response to my post earlier today, Carolyn Elefant remarked, "I haven't read the NY Times article, but I'd be shocked to find that public interest groups have trouble finding attorneys." After all, she explains, there's a lot of competition for those jobs.

She's right that many people compete for public interest jobs, and they're hard to get. The New York Times article focuses on lawyers who have managed to get into those jobs, only to have to leave for higher-paying work because they can't afford to stay in a public interest field. The problem may not be finding lawyers, but keeping them.

I notice that the kinds of salaries the article seemed to be talking about were substantially less than one can usually get for comparable work around here, so I'm sure there are regional differences, too.

A friend of mine works for a legal aid agency in eastern Minnesota. She has to wait tables so that she can pay the bills. It's unfortunate that she may have to leave her legal aid job, because she had a impressive touch with the clients (and a good success rate, too) when we were both in the clinical program at school, and she worked very hard to get that job upon graduation.

As for myself and what I want to do, well, that's a mystery I'm working to solve. You can bet, though, that every time I think about different sorts of paths I might take, those loan bills elbow their way into my thoughts.

The New York Times is running an article by Jonathan D. Glater today under the headline "High Tuition Debts and Low Pay Drain Public Interest Law."

My law debt is presently the bane of my existence, the golden handcuffs that keep me from doing things I want to do. I went to law school to open doors, to expand my opportunities, but the debt has a tendency to close them.

In the last few weeks I've been far too busy to blog or to read blogs, but today I decided to follow up on the issue of the "Super-DMCA" bills floating around in various states including my own, Colorado. I dropped by Ed Felten's Super-DMCA page and found that the Colorado Senate had passed a version of the bill.

I was pleased to find that the Colorado Senate had struck the provisions on "illegal telecommuncations equipment" that threatened to make basic secure communications technologies illegal. However, I then turned the page and found that the anti-circumvention provisions are still around.

The Colorado Senate also added some interesting savings provisions designed to protect "multipurpose devices" with more than limited "commercially significant purpose or use other than as an unlawful access device." The revision also has a paragraph that seems to be intended to make it clear that the legislature does not want anyone to interpret the law to mandate any sort of access protection. I'll have to take a closer look at that later.

But for now, it's back to work for me.

If you happen to know of any really good (by which I mean good to learn from) articles or books on the topic of damages analysis in defective or incomplete construction cases, I'd love to hear from you.

Most people who read this have already heard about the copyright lawsuits that the members of the Recording Industry Association of America have lodged against four college students. FindLaw has made the complaints available here.

Seth Finkelstein points out that the claim of $150,000 in damages per work copied bears no relation to the actual damage that the companies can possibly have suffered. He also accurately mentions that these are "statutory damages." Here's what that means.

The 1976 Copyright Act allows copyright holders to elect to receive "statutory damages" instead of actual damages. For statutory damages, the statute sets out parameters between which the court chooses "a sum... as the court considers just." In these cases, the top line on statutory damages is $150,000 per work copied (not per act of copying). I can't imagine the court granting that kind of damages award for this copying, but the plaintiffs asked for it just because they could. The idea behind this is that since you can't get what you don't ask for, you ask for everything and see what the court will give you.

The statute that applies to money damages for infringement is 17 U.S.C. § 504. For a summary, you can keep reading here.

Well, a lot has happened this week. The U.S. Supreme Court heard oral arguments in the Michigan affirmative action cases, Grutz v. Bollinger and Gratz & Hamacher v. Bollinger. Dahlia Lithwick has her Slate report here, and you can find more on the topic at Howard Bashman's How Appealing.

Ed Felten has created an information center on "Super-DMCA" bills that the MPAA has been pushing in state legislatures. The Colorado bill takes some relatively justifiable regulation of cell phone abuse and adds lots of vague and very overbroad provisions that look like legitimate regulation but potentially render presently legitimate, common, and highly desirable computer security mechanisms illegal. They could also stifle security research. I phoned and wrote to my Colorado Senator on that matter today. I explained my view and concluded that the bill's "only winners are in Hollywood. Its losers are everywhere else." Meanwhile, in other topics, Prof. Felten maintains that the ABA's report on wireless computing is an example of "high-order cluelessness." I haven't read the report, so I'll make no claims... yet.

Meanwhile, the California Supreme Court heard arguments in Intel v. Hamidi, questioning whether Intel could sue Ken Hamidi, a former employee, for sending anti-Intel e-mails to Intel employees' company email accounts. Denise Howell has links to coverage here.

U.S. Court of Appeals Judge Richard Posner spoke on intellectual property topics at the American Bar Association's TechShow conference. Rick Klau took excellent notes -- excellent just like all his other notes on the show. They're at his blog.

The Reporters Committee for the Freedom of the Press has set up a weblog called Behind the Homefront. [via BeSpacific, which you should already be checking regularly.] I haven't given it a close look yet, but it should be interesting.

The Supreme Court today upheld Interest on Lawyers' Trust Account (IOLTA) programs by a five to four vote.

Here's a little background information on lawyer trust accounts. A lawyer may not combine or commingle a client's money with the lawyer's own money. Instead, the lawyer must keep client money in some kind of trust account. For example, imagine that you approach me to handle a legal matter for you, and I ask for a $3000 retainer. After you give me the check, that's still your money -- I haven't earned it yet because I haven't done any work for you yet. (Some lawyers try to get clients to agree that retainers are "earned when received," but some courts take a dim view of that practice and often limit lawyers' ability to do it.) I have to put that money in a trust account, and I can only take money out of it as I earn it. When I do earn that money, I have to send you a bill telling you that I've taken money out of the retainer. If the kind of legal work I'm doing brings in any money for you, I put that in the trust account, too. If I put your money in my accounts or my money in a client trust account, I break the attorney regulation rules, and the courts may discipline me.

I can have many lawyer trust accounts. I can go so far as to set up a separate trust account for each client. That would ensure that each client earns the interest on his or her money, so that would be a very good idea if I were controlling substantial sums of money for long periods of time. But what if I were only holding on to a few thousand dollars for a few weeks at a time? That wouldn't earn much interest at all, certainly not enough to justify the expense of creating and maintaining separate accounts. Then, according to the attorney regulation office, I can and should put the money in my "COLTAF" trust account. COLTAF stands for "Colorado Lawyer Trust Account Foundation." The interest on that account goes to COLTAF, which then uses it to fund legal aid programs. My COLTAF account is a "pooled" account, which means that I can put the money for different clients together in the account, as long as I have an accounting system that keeps track of how much money each client has in the account. Each client's money earns only a tiny amount of interest, so clients don't miss out on much income if I put money in my COLTAF account, and it saves me the trouble of opening a new account for the client or doing the arithmetic to figure out the client's interest on funds in a pooled account. (After all, the interest is a tiny fraction of what it would cost to figure out the client's bill with that interest in it or even to set up a separate bank account.)

Nonetheless, the COLTAF account does take a few cents -- and maybe more -- of what would have become client money and gives it to COLTAF instead. This sort of program in other states led to the case Brown v. Legal Foundation of Washington, No. 01-1325 (Mar. 26, 2003), challenging the State of Washington's IOLTA program. The Court had already held in Phillips v. Legal Foundation of Washington, 524 U.S. 156 (1998) that the interest income on lawyers' trust accounts was the "'private property' of the owner of the [account] principal," the client. Id., at 172, quoted in Brown, slip op. at 1.

Quite a few people have already linked to James Grimmelmann's excellent summary of the Boalt Digital Rights Management Conference. (This is to remind me to go back and read it more closely....)

Late last year, the Creative Commons project announced that it had prepared several form content licenses designed to allow people who publish on the internet and in other media to publicly license their work. The Creative Commons organization aims to increase the amount of creativity that the public can share and draw upon in further creation. "Taking inspiration in part from the Free Software Foundation's GNU General Public License (GNU GPL), Creative Commons has developed a Web application that helps people dedicate their creative works to the public domain -- or retain their copyright while licensing them as free for certain uses, on certain conditions." [link] Nearly four months later, the experiment is still only just beginning both for the Creative Commons organization and for the artists who license their work under Creative Commons licenses.

Robert N. Diotalevi of the Legal Studies program at Florida Gulf Coast University has written an article titled "An Education in Copyright Law: A Primer for Cyberspace." You can find it here.

[via BeSpacific]

LawMeme reports that Pres. Bush has signed the Do-Not-Call Implementation Act into law. It's now P.L. 108-10. The Federal Trade Commission will implement a national do-not-call registry, which will allow people to opt out of receiving telemarketing calls. The Implementation Act gives the FTC authority to collect fees for the registry in order to fund the system.

The FTC has already revised its telemarketing rules at 18 C.F.R. 310.4(b)(1)(iii)(B), stating that

It is an abusive telemarketing act or practice and a violation of this Rule for a telemarketer to engage in, or for a seller to cause a telemarketer to engage in ... [i]initiating any outbound call to a person when... that person's telephone number is on the "do-not-call" registry, maintained by the Commission, of persons who do not wish to receive outbound telephone calls to induce the purchase of goods or services....

The rule excludes situations where the caller has express written permission, when the caller and person called have an established business relationship and the customer has not expressly refused telemarketing calls, and numerous calls for charitable, political, and other purposes. You can find a press release and sidebar links to the regulations at the FTC web site here.

The Act also directs the Federal Communications Commission to amend its rules in consultation with the FTC.

The GPO doesn't have the new law online yet, but the Library of Congress has the bill text. The drafting of section 2, the main operative section, provides an unfortunate example of why passive voice annoys readers.

When I last wrote about the Creative Commons licenses, I did not go so far as to talk about the sorts of factors that might guide people in making licensing decisions. Here, for your comment, is a draft with some ideas I've sketched out. Right now I've got four categories of considerations. Can you recommend others that I might include? Please note that I'm trying to talk about the factors people consider without myself passing judgment on their merit or appropriateness. That is, I do not want to take the angle, "You should value this consideration and therefore should decide for/against the license." I only want to say, "You might want to ask yourself whether and how much this concept or issue matters to you, because it might affect your decision."

I'll be out of town tonight and tomorrow, but I'll respond to comments on Sunday afternoon.

People make copyright licensing decisions in different ways for different reasons. Only the author can make the final assessment of whom to give permission to copy, display, or perform the author's work and for what reasons. I can only talk in broad terms about some of the reasons people might or might not choose to license works under a Creative Commons license. However, I don't want readers to get the impression that I'm saying that certain categories of people with certain interests should choose a certain license. All I want to do here is to talk about some of the factors authors might weigh against each other, in order to spur the imaginations of readers. If you use this for anything at all, use it as a starting place and not an ending place for your thoughts about licensing.

Let's start by remembering the starting position of licensing: people may not make copies of copyrighted material without permission from the person who holds the copyright. When you publish material on the web, you offer an "implied license" for me to download a copy and display it on my computer screen -- why else would you put it on the internet? -- but you don't give me permission to do anything else with it. Now, why might you give people broader permission to copy and use your work? Why might you not?

Although fair use allows people to copy parts of what you say for the purposes of comment and criticism, you might want to make it clear to readers that you want them to copy all of what you say if they want to. It might mean much more for you to see your creativity passed around from person to person than it would mean to hold out in hopes of obtaining money from a commercial publisher for a more limited, controlled release. The Creative Commons licenses are designed to allow an author to offer his or her works for people to pass around as much as they like, as long as they follow certain rules.

For example, suppose that I have an essay that I'm happy to have people passing around. I only want to make sure that they identify me as the author, that they don't try to add to it or make their own changes to it, and that they don't make money off of the process (because in the unlikely case someone is going to make money off of this work, I want in on the deal). I may well find that the "Attribution-NoDerivs-Noncommercial" Creative Commons license fits very well with my goals. It lets them pass the work around while I retain the legal power to demand that they properly attribute it to me. If I have different goals or fewer concerns, a different Creative Commons license may better fulfill my goals.

Suppose, however, that I want to be able to require people to copy my work only from my own website, and I want to have the legal power to halt further copying if I decide to release a newer edition or retract the essay. First, let's keep in mind that fair use doctrine will still allow people to quote content from my essay, even if I can stop all further licensing of the work. But still, suppose I want to retain whatever control over distribution the law will give me. In that case, the Creative Commons licenses' propagation clause will frustrate my goals. For example, one substantial reason this article is not licensed under a Creative Commons license is that I'm still working on it -- and I may always be. I want to know and control where copies go so that when I rethink something and make major changes, there's less out of date or incorrect material floating around.

I may also want to limit who may use my work and for what purposes. Fpr example, if I am a photographer, I may be very pleased to find my photo displayed on a charitable organization's website, and much less pleased to find it displayed on the website of a racist organization. If I have licensed my photo to all comers for all non-profit purposes, both of these organizations may copy and display it. Only if I have retained the power to grant licenses to people on an individual basis will I be able to choose the charitable organization and exclude the racist one. Is this likely to happen to most people who release their work online? Probably not, but it's still something to consider.

Meanwhile, remember that even restrictive licensing will not prevent people from copying some of the material to the extent that it helps them comment on or criticize the work. Comment and criticism lies close to the heart of fair use. Fair use doctrine includes the idea that people may not copy more than they need in order to make their critical points, but within those vague limits, they will still be able to copy. Restrictive licensing will not allow anyone to "lock down" work against criticism. If someone publishes a scathing weblog entry that turns out to be a frightfully bad idea, fair use will almost certainly let me blockquote at least some (and probably only part) of that content in the context of commenting on it, even if the author decides to retract and delete the entry.

Some writers have chosen to apply the Creative Commons licenses to their webpages and/or weblogs because they believe that it best reflects the prevailing intellectual ethic in their academic community. A Creative Commons license makes it easier for others to copy interesting work and share it with others in the community. When the community places a high value on the sharing of ideas and expression, the Creative Commons license represents a positive gift to the community. Of course, it doesn't hurt in terms of reputational reward, either; the author may take advantage of easy word-of-mouth distribution while the community notices and appreciates it. Fair use doctrine facilitates some scholarly copying, but a Creative Commons license may bypass the question of fair use for many purposes.

Commercial publishers, including the publishers of most academic journals, want to be the first to publish the material they print. In many cases, they also want to be the last. In academic publishing circles, a lot of prestige can come from being first. Academic publishers also tend to demand the author's entire copyright, though they may license rights for certain uses back to the author as part of the copyright transfer agreement. Many academic journals -- especially in the sciences -- have taken to charging astonishingly high prices for print and digital editions. Publishers will not be eager to compete with a free Creative Commons licensed edition of the same article that anyone can download from the author's webpage (or from the webpage of anyone else who holds the Creative Commons license in the work).

Cory Doctorow recently released his novel Down and Out in the Magic Kingdom online under a Creative Commons license as well as in book form through a commercial publisher. We'll never really be able to tell exactly how this decision has affected book sales revenues for Doctorow and his publisher. However, it's almost certain that he dramatically increased the circulation of the book, at least over the short term. The decision also brought him -- to use his own terminology -- substantial amounts of 'whuffie,' reputational reward. The idea of 'whuffie' and discussions about reputational economics probably would not be nearly as popular in online circles if there were no online, Creative Commons licensed edition of Down and Out.

The publisher's requirements issue may be less significant for people who are only contemplating using the Creative Commons license for more casual publications like weblogs. The question may come up only if the author posts drafts of professional articles (or draft chapters of fictional work, or poems that he or she intends to publish, etc.) to the weblog. The topic will certainly come up, though, if the author wants to release the very same material online for free and in print for charge.

If the free online scholarship movement gains steam in the next several years, the face of academic publishing may also become much more friendly to Creative Commons licensing. Meanwhile, authors who depend on commercial publishers for academic reputation building or financial income should keep in mind the rights that their publishers are likely to demand.

A little thinking out loud here-- or rather, thinking in blog:

While rewriting my earlier post analyzing the impact of various Creative Commons license terms, I decided to add a section suggesting that one might resolve the question of how to indicate how much content one wants to license by simply saying so. I thought, perhaps one could just add some text under the license graphic on the main page.

Then I noticed that the Creative Commons license has a very typical merger clause:

This License constitutes the entire agreement between the parties with respect to the Work licensed here. There are no understandings, agreements or representations with respect to the Work not specified here.

Would this exclude a statement outside the the "four corners" of the agreement that indicates how to interpret the term that specifies "the copyrightable work of authorship offered under the terms of this License"? On its face, it appears to, but my hunch is that it doesn't. There's still an ambiguous term to be deciphered, and that term ('the Work') even appears in the merger clause. The "parol evidence" rule only excludes prior or contemporaneous agreements when the parties intend that the agreement be "fully integrated," and it has an exception for using earlier agreements or contemporary statements to explain the final writing. Even though merger clauses are meant to trigger the parol evidence rule, this one probably doesn't -- at least as to the meaning of 'the Work.'

Still, I wonder if there's a risk of disputes.

</thinkinblog>