Judging Puce

Ernie the Attorney states precisely something I’ve tried to get across about a lawyer’s need to decide and act in a world filled with ambiguity:

As a lawyer, I’m perfectly comfortable with conflicting information. The remedy for conflicting information is not to try to eliminate “flawed sources,” but to think critically about all sources of information that you encounter.

And then he illustrates his satisfaction with Wikipedia by discussing its definition of the color “puce,” making clear all the while that he understand there’s some dispute whether the color Wikipedia calls puce really is puce.

Guilty until proven innocent

Gerry Spence offers some much needed balance regarding Illinois Governor Rod Blagojevich, Prosecutor Patrick Fitgerald, and the presumption of innocence:

Our collective public mind has been molded by the movies and television to accept the notion that the common good permits, indeed, encourages cops and prosecutors to violate the law in order to protect us. We see the police battering down doors of suspects to illegally obtain evidence. We witness the cops bugging phones and forcing confessions. We want the police to win, because they are the heroes of the drama and such crimes are serious and threaten our security. But this sort of lawless bludgeoning of the law does terminal damage to our system of justice. By destroying the rights of any accused none of us are ever safe from the law that once stood to protect us.

Mr. Fitzgerald has selected and then dumped out pages of unsworn, untested, evidence before governor has even been charged. We already know that what the prosecutor provides is only part of the story, only the juiciest excerpts that will cause the governor the most harm. The grand jury has not yet met. Every potential member of the grand jury and later every trial juror who will sit in judgment of the governor has already been stained with prejudice against him. The presumption of innocence has been reduced to a cruel joke. Why have a trial? Mr. Fitzgerald has already convicted the governor in the media. One wonders if the government’s case is so legally flimsy that the prosecutor must revert to these tactics in order to assure a conviction.

. . . What we witness without a whimper from the media, the courts, or the bar is a prosecutor charged with the highest professional duty to see that every accused, no matter how guilty, obtains a fair trial, and who, instead, in this historical instant, has voluntarily taken steps to see that such a right becomes little more than a sad, distant echo of a justice system that once set the standard for the world.

Art exposing law: Pirates of the Amazon

Here’s some art trying to express the tensions between technology allowing the instant worldwide dissemination of a work and the law that evolved to deal with an entirely different set of technologies. DailyTech reported that a Firefox plug-in named “Pirates of the Amazon had been developed that allowed its users to immediately identify free alternative online sources for any product they found on the Amazon.com website. Within a day, Amazon’s lawyers had filed a takedown notice. Subsequently, someone put up a website stating that the plug-in had been created as an art project meant to illuminate issues raised by today’s “media culture”:

“Pirates of the Amazon” was an artistic parody, part of our media research and education at the Media Design M.A. course at the Piet Zwart Institute of the Willem de Kooning Academy Hogeschool Rotterdam, the Netherlands. It was a practical experiment on interface design, information access and currently debated issues in media culture. We were surprised by the attentions and the strong reactions this project received. Ultimately, the value of the project lies in these reactions. It is a ready-made and social sculpture of contemporary internet user culture.

One day after publishing we received a take down request by the legal department of Amazon.com.

This work was made as a trimester assignment in our study course, under the supervision of our tutor Denis Jaromil Rojo and our course director Florian Cramer. This page is now the documentation of our study work as required by the course.

To further confuse matters, DSLReports.com wonders if the claim the plug-in was an art project was “simply a post-release attempt by the plugin’s author to cover his legal posterior.” I would suspect, though, that the project really was an art school endeavor. Denis “Jaromil” Rojo “is an artist and a FOSS hacker. . . . popularly known for Dyne:Bolic (http://www.dynebolic.org/), a Live CD distribution . . . . As a programmer, he is author of several free software that present new possibilities for online radios. Jaromil is identified as a “tutor” for the 2008-09 academic year on the Piet Zwart Institute’s web site, and Florian Cramer is identified on the same site as the “course director of the Media Design M.A. programme.”

ADDENDUM: Florian Cramer writes in the comments to thank me for the “balanced” coverage and to add that the indication the site was an art project was made clear on Pirates of the Amazon from the beginning.

You don’t have to sue — defamation and exposure

Another key to representing a client well is to ignore things better forgotten.  From CNet: a chiropractor sued an individual who had posted a negative review of the chiropractor online.  The chiropractor’s attorney is quoted as saying that the issue in the case is whether the review stated facts or the reviewer’s opinions:

“[My client] has no problem with people expressing their views and opinions about his service, . . .  [b]ut there is a line where if someone, even on . . . on the Internet, publishes a false statement of fact as opposed to an opinion, then that person can and should be held responsible for their words.”

But a bigger issue may be that the chiropractor’s billing practices are at the center of the defamaion lawsuit, and all the defamation lawsuit has done so far is highlight the fact the chiropractor bills insurance companies more for his services than the prices he quotes to patients.

Litigation is a public event.  Court files are open to the world.  When you sue someone, you often open up to inquiry a lot you never thought might see the light of day.  You and your lawyer need to consider these possibilities seriously before you sue.  No matter how good a lawsuit you have, you don’t need to sue, and it might turn out that even if the lawsuit alone seems to have an upside, the downside it poses to your life makes it not worthwhile.

Scrabble v. Scrabulous redux

There are many examples of what I wrote about yesterday — lawyers prosecuting a lawsuit on behalf of a client who in fact would be better off not suing even though his claim might be a legitimate one — but there are few better than the one I wrote about here in November: Hasbro’s lawsuit against the creators on Facebook of Scrabulous, brought because, in the words of Hasbro’s lawyer, “Hasbro has an obligation to act appropriately against infringement of our intellectual properties.”  As Eric Eldon wrote yesterday in Venture Beat, “Hasbro owns the Scrabble copyright for the U.S. and Canada and forced Scrabulous to go offline in those countries at the end of July; Mattel owns the rights to Scrabble everywhere else and followed in Hasbro’s footsteps a month later.”  The problem is that now Hasbro’s product on Facebook and the product newly produced by the creators of Scrabulous are splitting a smaller audience on Facebook than Scrabulous alone had on Facebook even as Facebook’s participation climbs precipitiously.  Eldon suggests it would’ve been much wiser for Hasbro and Mattel to have entered into a partnership with the creators of Scrabulous to produce a Facebook-based Scrabble game.  Instead, the lawyers took over, and everyone is worse off:

This is exactly how not to build a Facebook app. Facebook is designed to help people share information with those they care about – geography-based licenses from another era have just gotten in the way of making something people want to use.

Representing clients in a changing world

This item, from Techdirt, should give some pause to lawyers who represent copyright holders: the top selling MP3 download on Amazon last year was Nine Inch Nails’ Ghosts I-IV album.  As Techdirt explains, this means, “[i]n other words, you could go on pretty much any file sharing system out there and legally download the music for personal use… and yet it was still the top selling downloadable album (this is on top of all the money earned by Reznor’s other business models associated with this album).”

A lawyer’s job is to represent the best interests of his client.  It may well be that the best interests of copyright holders in an environment where digital information can instantly be duplicated and instantly be disseminated world-wide is to find new business models, not to persist in the 20th Century habit of filing infringement lawsuits.  It seems silly, for example, (as IP Watchdog points out) for Gatehouse Media to be suing “the New York Times alleging copyright infringement by the New York Times because one of the papers owned by the Time, namely the Boston Globe, was linking to original articles owned by Gatehouse Media.”  Gatehouse’s allegations of infringement are based on the fact that the links, though they provide attribution to Gatehouse, are “deep links” — that is, they are links to the articles themselves that, therefore, bypass Gatehouse’s homepage (and, presumably, the advertising on the home page).

The court in Ticketmaster Corp. v. Tickets.Com, Inc., No. 99-07654 (CD Calif. Mar. 27, 2000)(pdf), found that deep linking was permissible. Tickets.com had provided deep links to pages on Ticketmasterrs website to guide readers precisely to the spot the could purchase tickets for specific shows. Ticketmaster wanted readers and customers to come through Ticketmaster’s homepage. The Court stated:

The customer is automatically transferred to the particular genuine webpage of the original author. There is no deception in what is happening. This is analogous to using a library’s card index to get reference to particular items, albeit faster and more efficiently.

The court concluded the deep links provide by Tickets.com did not constitute copyright infringement. Nevertheless, other deep linking cases (discussed by Gayle Campbell and Patty Steib here) make clear that the legality of the practice (like so much in copyright law) has not been finally determined.

But Gatehouse Media’s lawsuit seems intended to stop a practice that can only benefit Gatehouse Media by bringing more traffic to its site.  And what good are links if, for example, I left you wandering through a webiste trying to find the right page rather than sending you straight to it?

For some lawyers, unfortunately, a right is only something to be vindicated, not just one factor among many that need to be taken into account in seeking the client’s best interests.

Righting wrongs the American way

One of the ways our legal system adjusts is that old process we remember from our first elementary school courses (and perhaps think of as trite and archaic): the system of checks and balances.  I grew up at a time when the federal courts were a substantial check on state legislatures, state courts, and local police forces.  Since my childhood, though, the political system has grown increasingly conservative, and by now the federal courts too have become conservative.  Last year, as the New York Times explained yesterday, the Supreme Court “made it much harder for people to challenge discrimination in employment, education, housing and other fields. Lilly M. Ledbetter lost her sex-based pay discrimination case at the Supreme Court in 2007, a decision that other courts have cited in rejecting lawsuits. Congress may overturn the ruling.”

The Court held that employment discrimination claims must be be filed within 180 days of the  ”the alleged unlawful employment practice” – the initial decision to pay Ledbetter less than men performing similar work.  Previously, courts had held that each paycheck after the initial discriminatory act (each of which would have been for less money than if the discrimination had not been committed), constituted a new act of “continuing discrimination.”  Thus, as long as the employee filed her claim within 180 days of a paycheck reflecting the impact of the discriminatory employment decision, her claim could be heard.

The decision was roundly criticized at the time and quite plainly cut off an enormous number of discrimination claims (whether the unlawful action had been discovered within the 180 days or not).  Now it seems Congress is ready to right this judicial wrong.  The bil it is is considering “states that a violation occurs each time a person receives a paycheck resulting from ‘a discriminatory compensation decision.’” “President Bush threatened to veto the bill, but Mr. Obama is eager to sign it.”