Can we force a prisoner to be medicated in order to be competent enough to be executed?

Truly only Franz Kafka could do justice to some of the questions that arise in our justice system. In Singleton v. Norris, 319 F.3d 1018 (8th Cir. 2003), the defendant argued that he could not be executed because he was not mentally competent and that he could not be forced to take medication to make him medically competent because to do so would make him eligible for execution and therefore could by no means be in his “best medical interest.” The 8th Circuit disagreed, requiring the question whether the medication to make the defendant competent  to be answered “without regard to whether there [was] a pending date of execution.” Id. at 1026. Both the death sentence and involuntary medication regime had been lawfully imposed. The defendant thus could no longer assert either a life interest nor a liberty interest.

Now, though, the North Carolina Criminal Law Blog suggests that more recent U.S. Supreme Court precedents “may collectively stand for the notion that the execution of an inmate who is competent only by virtue of forced medication might violate the Eighth Amendment’s evolving standards of decency.”

I find the suggestion encouraging, but I am skeptical. We seem loathe to find reasons not to execute people these days.

Trademark madness

From Legal Pad: “Sand Hill Advisors, the Palo Alto wealth management company, is suing Sand Hill Advisors, the commercial real estate company in Los Altos, for trademark infringement.” I am, apparently, one of the 3 people Legal Pad asserts did not know that “Sand Hill Road is the iconic stretch of pavement near which the sainted feet of venture capitalists tread daily to their places of work.” There was a time I would’ve known the signifiers that mattered to venture capitalists. I suspect I’m better off no longer knowing.

Apparently the wealth management company claims it’s been using the name since 1995 and that the real estate company is profiting off the value that the wealth management company has created in the name. There would be some merit in the claim if people really are using the real estate company because they think it’s somehow associated with the wealth management company, but that would seem to be a difficult set of facts to establish. Typically, a trademark cannot be enforced against someone using it in a different market because in doing so the alleged infringer typically is not capitalizing on value in the trademark created by the claimant.

In addition, the real estate company claims (it its motion to dismiss (pdf)), that the trademark claim is deficient because the wealth management company “doesn’t even have an enforceable service mark, since the government rejected a trademark application because the name was descriptive of a place.”

Legal Pad, though, is dead on in its prediction: “Sand Hill Advisors has it in the bag.”

But who will win the lawsuit filed by Mickey Mouse against Donald Duck?

Homeland uber alles.

I’m not Hannah Arendt’s biggest fan, but the prominence she gave to “banality of evil” is an accomplishment that ought to be honored through the ages. As Wikipedia explains her thesis as well as it can be concisely described, “the great evils in history generally, and the Holocaust in particular, were not executed by fanatics or sociopaths but rather by ordinary people who accepted the premises of their state and therefore participated with the view that their actions were normal.” The role of the legal profession in Nazi Germany is, I think, a relatively neglected topic, but one can recognize when judges engage in specious reasoning to transform ugly, degrading, murderous, and unspeakable acts into the “normal” way of protecting our homeland.

I’ve compared the case of Maher Ahar to The Trial. I’m afraid that comparing it to fiction was my own effort to deflect the ugliness. As Glenn Greenwald describes Arar’s nightmare:

Maher Arar is both a Canadian and Syrian citizen of Syrian descent. A telecommunications engineer and graduate of Montreal’s McGill University, he has lived in Canada since he’s 17 years old. In 2002, he was returning home to Canada from vacation when, on a stopover at JFK Airport, he was (a) detained by U.S. officials, (b) accused of being a Terrorist, (c) held for two weeks incommunicado and without access to counsel while he was abusively interrogated, and then (d) was “rendered” — despite his pleas that he would be tortured — to Syria, to be interrogated and tortured. He remained in Syria for the next 10 months under the most brutal and inhumane conditions imaginable, where he was repeatedly tortured. Everyone acknowledges that Arar was never involved with Terrorism and was guilty of nothing.

Yesterday, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of Arar’s lawsuit (pdf) alleging, among other things, that his treatment by U.S. officials violated his constitutional rights to due process. Why? Because he couldn’t name the people who did what they did to him:

Arar alleges that “Defendants” — undifferentiated — “denied Mr. Arar effective access to consular assistance, the courts, his lawyers, and family members” in order to effectuate his removal to Syria. But he fails to specify any culpable action taken by any single defendant, and does not allege the “meeting of the minds” that a plausible conspiracy claim requires. He alleges (in passive voice) that his requests to make phone calls “were ignored,” and that “he was told” that he was not entitled to a lawyer, but he fails to link these denials to any defendant, named or unnamed. Given this omission, . . . we agree with the District Court and the panel majority that this Count of the complaint must be dismissed. Slip op. at 24-25 (emphasis added).

So next time you’re hauled in off the streets, held incommunicado, and sent to Syria to be tortured, be sure to get down the names of the “officials” doing this to you. Otherwise, you have no constitutional protections against this treatment. It’s all in the name of national security, and that trumps all, right?

This is “judging”?

Blackberry as ball and chain.

When I left practice, the firm I worked for, like every one I knew of, was still too paranoid about security to be online. And I didn’t have a cell phone. I should be grateful. Technology is, like every advance, both a blessing and a curse. I hate when I have lunch with my former colleagues and their attention is on the Blackberry under the table. But at least I understand the dilemma they face. At Quinn Emanuel (the firm a good friend recently moved to), Above the Law reports, a partner’s email made very clear to all that one is on call every waking hour, adding in for good measure a firm-wide swipe at an associate who had actually done a good job but hadn’t checked his email after 7:30 p.m. The email, in part, reads as follows:

You should check your emails early and often. That not only means when you are in the office, it also means after you leave the office as well. Unless you have very good reason not to (for example when you are asleep, in court or in a tunnel), you should be checking your emails every hour. One of the last things you should do before you retire for the night is to check your email. That is why we give you blackberries. I can assure you that all of our clients expect you to be checking your emails often. I am not asking you to do something we do not do ourselves. I can assure you that John Quinn, Peter Calamari, Mike Carlinsky, Faith Gay, Fred Lorig, etc. all check their emails often.

Yesterday I was working with a relatively new associate on a project which both he and I knew was a rush. It was for a relatively new client whom we were trying to impress. The associate did a nice job under pressure. Before I left the office at about 7:30 I sent an email to this associate asking him to perform a task—fax a draft letter for review and comment. I assumed the task was done. Turns out the associate left the office and did not check his emails until this morning. I assumed the task had been completed. It had not been. In this case it was no harm no foul, but I think we can all imagine scenarios when this could be a disaster.

Using the legal system to intimidate — Cook County Prosecutor and Northwestern’s Medill Innocence Project

Before beginning my teaching career, I was a commercial litigator for almost 12 years. As a result, many think I’m one of those people ready to sue at the drop of a hat. But I think that litigators might be among the most litigation-averse people around — we know the price litigation extracts, and we know it’s one of the least desirable means of dispute resolution around. (That’s not to say it isn’t crucial — one has to resort to bold and difficult measures when others fail.)

So litigators know too that suing people — forcing them into litigation — is a powerful weapon. Sometimes it is used flat out to intimidate. An example of litigation being used for, apparently, nothing but intimidation is pointed out by techdirt:

The Medill Innocence Project at Northwestern University “gives undergraduate students firsthand experience in investigating wrongful convictions.” The Project’s efforts have freed 11 prisoners, including 5 who were on death row. But now, according to the Chicago Tribune, in preparation for a hearing the Project’s efforts have won for another prisoner, “[t]he Cook County state’s attorney subpoenaed the students’ grades, notes and recordings of witness interviews, the class syllabus and even e-mails they sent to each other and to professor David Protess of the university’s Medill School of Journalism.”

I can’t say I disagree with Northwestern’s lawyer, who said the prosecutors subpoena is “an unwarranted fishing expedition that focuses on the messenger — rather than on the possibility that an innocent man has spent more than three decades behind bars. Prosecutors, he said, ‘seem to be peeved’ at the Innocence Project for uncovering a wrongful conviction.”

The new economy, the billable hour, and law school tuition — change is afoot.

When things change, things change.

I’ve written at length before about the perversities created by the hourly rates charged by lawyers. Hourly billing has been the standard practice in most of legal practice for the past 50 years or so. The practice on its face is troubling — just as our current health insurance scheme provides incentives for doctors and hospitals to do and bill more (and, conversely, to engage in less preventative medicine), so too does the billable hour provide incentives for lawyers to do more and, therefore to bill more.

The system has maintained itself in the same way many of our economic practices have maintained themselves — by means of an every increasing pie. And from the provider end the inflation worked its way down to every level — bills, salaries, hours, and law school tuition all skyrocketed. The tuition rise could be paid for by loans that could be paid with inflated salaries. The inflated salaries were paid by inflated bills, which were produced by inflated hours.

And in 2008 the whole edifice came crashing down. Now, all the talk is about different billing practices.

We’re all still waiting for the change, however. One outcome of a change would be, I hope, a decrease in the use of sheer economic weight to out-litigate an economically disadvantaged adversary. As things stand, as much as I hoped always to be efficient for my client, the adversary would require me to do more than I otherwise would if the adversary chose to contest every matter and to thoroughly investigate every single piece of discoverable evidence (no matter how trivial or irrelevant).

And U.S. students are desperate for relief from the tuition costs the billing practices have raised. Legal jobs are scarce, and those that exist are at depressed salaries. But tuitions have not yet come down. They’re going to have to.

Want to become a practicing lawyer? Don’t go to Harvard! Nesson and Tenenbaum again.

Some of my favorite and most respected former colleagues in practice went to Harvard Law School, but, based on what I’ve been seeing out Charlie Nesson in his role defending Joel Tenenbaum in Sony BMG Music v. Tenenbaum, I have to seriously wonder what Harvard is teaching about the actual practice of law.

I took Nesson to task recently for using his role as lawyer in the case to fight a crusade against the music industry, not to give his client the best defense possible. That attitude alone destroys my confidence in Nesson’s ability to train anyone to be a lawyer.

Now Nesson has proven he can’t write a brief. Yesterday on behalf of Tenenbaum he filed in the court that produced the $675,000 judgment against his client a document entitled Defendant’s Opposition to Entry of Judgment and Injunction (pdf)(the “Brief”). There are some non-frivolous arguments somewhere in that self-righteous screed, but they’re so buried in Nesson’s preference for rhetorical flourish over lawyerly detail that, as a responsibility to the students I am teaching to be lawyers, I have to call him out on his incompetence. A lawyer’s job is to win the judge to his client’s side through persuasive reason and argument; it is not to throw a mess at the judge that may or may not contain winning arguments and leave it to the judge to find those winning arguments.

It’s a dirty little secret that lawyers don’t like to make too much of: lawyers, not judges, win and lose cases. Lawyers don’t like to make too much of it because they want judges to believe they’re the ones from on high pronouncing judgment. But if you convince the judge you’re right and give him the tools to rule your way, you’ll win. It is remarkably pleasing to get an order from a judge ruling in your client’s favor and realize the order is merely a cut-and-pasted version of your brief. Why shouldn’t the judge steal my words if they explain his result as well as he can figure out how to explain them, and why should he trouble himself trying to find better ways to do so?

But Nesson doesn’t give the judge he’s seeking to persuade anything to work with. First, he’s asking the judge not to enter an order that would impose the jury’s verdict and the injunction against his client. But on what basis? Is he asking for judgment notwithstanding the verdict? What procedural rule is he filing his opposition to the entry of the judgment on? His Brief sure doesn’t explain the basis. Nor does it explain what he is asking the judge to do in lieu of entering the order? Dismiss the case? Lower the damages? Lift the injunction? Any or all?

Listen, students: when you write to the judge make sure she knows what you’re asking her to do and the legal basis she has for doing it.

I won’t get into all of the merits of Nesson’s arguments. I think he may well have a due process argument on the excessiveness of the statutory penalties, but even that one is a stretch.

But the argument he considers “first and foremost” is that “the statute in question does not permit a lawsuit against an individual consumer for statutory damages.” Brief at 1-2 (emphasis added). Having not graduated from Harvard myself, perhaps I am missing something. The operative statute, 17 U.S.C. Section 504(c), provides that “the copyright owner may elect . . . to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, . . . .” (emphasis added)

Nor is there anything in any authority to suggest that Nesson’s incomprehensible conclusion that the statute does not contemplate imposing statutory damages on individuals is founded in sources to obscure for me to know.

Nimmer on Copyright, Section 14.04[a] provides: “Under the current Act, the copyright owner may elect to recover statutory damages, instead of actual damages and defendant’s profits. He may, moreover, make such an election regardless of the adequacy of the evidence offered as to his actual damages and the amount of defendant’s profits, and even if he has intentionally declined to offer such evidence, although it was available. . . . The availability of statutory damages under the current Act, even under circumstances in which plaintiff’s damages or defendant’s profits are susceptible to precise evaluation, represents a departure from the pertinent provisions of the 1909 Act.Under that former law, the availability of statutory damages was to a degree discretionary with the court and turned largely upon the proof of actual damages and defendant’s profits.” (citations and internal quotation marks omitted)

Patry on Copyright, Section 22:153 states: “Statutory damages are damages whose assessment has been fixed by the legislature. They have existed in U.S. copyright laws since preconstitutional days and stand in contrast to common law actual damages and an accounting of defendant’s profits. Recovery of actual damages or profits varies according to the harm suffered or the benefit received, without an upper limit on the recovery. Statutory damages have been believed to be particularly valuable where such relief is difficult to prove. The purpose of statutory damages has been noted a number of times by the Supreme Court.”

Thus, the court in In re Mann, 410 B.R. 43, 49 (Bkr. C.D. Cal. 2009), quoting Columbia Pictures Television, Inc. v. Krypton Broadcasting of Birmingham, Inc., 259 F.3d 1186, 1194 (9th Cir.2001) (quoting Nimmer at § 1404[A] ), stated: “However, a plaintiff may elect statutory damages for copyright infringement ‘regardless of the adequacy of the evidence offered as to his actual damages and the amount of defendant’s profits.’” In Raydiola Music v. Revelation Rob, Inc., 729 F. Supp. 369, 374 (D. Del. 1990), the court explained that “the purpose of statutory damages is to remedy a wrong which would otherwise go unremedied if actual damages could not be proven.” See also Broadcast Music, Inc. v. Papa John’s Inc., 201 U.S.P.Q. at 305 (“Statutory damages were provided by Congress to create a remedy where actual damages [or profits] are not provable at law, but yet where it is proven that a violation of the copyright has occurred.”).”

In short, the plaintiff in a copyright infringement case has an alternative: he can prove and recover actual damages or seek the amounts allowed by statute. Such alternatives are common in situations in which it might be difficult for plaintiffs, even after having established statutory violations, to quantify their economic harm. It might even be argued that illegal downloading is precisely such a case — how can Sony BMG possibly quantify the sales, if any, it lost as a result of Tenenbaum’s unauthorized downloading of copyrighted songs.

Could I be wrong? Of course, but Nesson hasn’t begun to explain to me why. Instead, he’s made himself out to be someone who makes arguments that are patently false.

Don’t get me wrong here. I’m not on Sony BMG’s side. I think the music industry’s legal and business approaches to the technological revolution that has entirely undermined their old business models have been disasters, and I certainly don’t think Joel Tenenbaum should have to pay Sony BMG $675,000.

My problem is that Nesson is Tenenbaum’s lawyer and he hasn’t given me a good reason to believe he can get Tenenbaum free from that monumental verdict.

Lawyers do the best they can for clients; I wish law professors realized that’s what lawyers should always do.

As someone who has practiced over ten years and taught over ten years I am particularly sensitive to the divide between legal practice and legal academia, and I am partial to the legal practice side of the debate. It’s not that a lot of law professors don’t do a lot of good things; rather, it’s that too many law professors and too much legal education proceeds as if the world of practice is irrelevant. In fact, I am convinced that legal education and legal theory divorced from the application of law in practice is meaningless. Law does not exist except as it has the potential to affect the real world (unless you’re talking about religious law).

And it is fundamental to the practice of law that the first and primary responsibility of the lawyer is to the client’s best interests. When you start treating the client merely as a means to raise intellectual issues you find of greater interest you’re doomed to get in trouble.

Charles Nesson is a good example of a law professor who doesn’t understand how to be a lawyer. Nesson ignored the advice of many who are sympathetic to the plight of file sharers in conducting his defense of Joel Tenenbaum, a case which resulted in a $675,000 verdict against his client. There were many who considered Nesson’s defense bad lawyering, including myself. Blue Mass Group even asked whether he was “the worst lawyer ever” in a post that supported the legitimacy of the question with examples from the case:

[T]hrough the course of the litigation, Tenenbaum gave sworn statements that he then contradicted at trial. And in a dramatic moment, it seems that at the end of his testimony, just before the verdict, he actually admitted liability, causing the judge to find him liable and the leave only question of damages for the jury to decide. Who prepared Tenenbaum to testify? Did anyone bother?

It also seems that Professor Nesson made audio-recordings of depositions in the case–perhaps for use in the classroom?–without the knowledge of the lawyers on the other side of the case. This is potentially a crime, as well as an apparent violation of the Rules of Civil Procedure, which require a lawyer taking a deposition to notify the other side of the method to be used to record it (though perhaps if Professor Nesson was recording depositions taken by the other side, he would not be in violation of the rule–I’m not sure).

Now, Professor Nesson says he will appeal on the judge’s failure to instruct the jury on fair use. I’m not a copyright law expert, but I’ve heard others describe this issue as likely to lose.

In any case, it seems clear to me that Professor Nesson did not really act to protect Tenenbaum’s interest. This twenty-something graduate student is now facing bankruptcy when he could have settled the case for next to nothing.

More support for the criticism of Nesson’s job defending Tenenbaum comes today with the news that the judge in Tenenbaum’s case ordered defendants who did not even bother to defend file sharing charges to pay the minimum penalties allowed under the Copyright Act, prompting Ars Technica to point out that Tenenbaum and others like him “would have been far better off monetarily if they had simply ignored the complaint altogether and failed to show up in court.”

The sad part is Ars Technica is right — sometimes bad lawyering is worse than no lawyering.

Nesson’s response to criticism that he ignored defenses and other strategies he might have used to minimize Tenenbaum’s liability? He writes, without an ounce of apparent regret: “these defenses do not join the fundamental issues. this trial was not an exercise in getting joel off the hook.”

That’s precisely my point. If you treat a case as a means to an end and are willing to sacrifice the client’s best interests to get to that end, you are not doing your ethical duty as a lawyer. If you insist on a jury, make legal arguments there is no good reason to think will prevail, allow your client to lie in pretrial testimony and go ahead and put him on the stand anyway, flout good sense in recording hearings without having gotten the judge’s permission to do so, and then go and post those recordings on line, is it any wonder your client ends up paying a big price?

As I indicated in my last post (and numerous times on this blog and elsewhere), I am convinced the RIAA’s campaign to sue file sharers is misbegotten as a practical, business matter. I’ve even gone out of my way to try to help Nesson. (See also here.) That doesn’t mean that Nesson is a noble guy in sacrificing his client to what he considers a greater cause, and a lawyer should know better.

Let’s get straight the historically profound benefits of making information available online — Scribd this time.

Two days ago I wrote about the court decision holding that the video hosting service Veoh is protected by the ”safe harbor provisions” of the Digital Protection Millennium Act from liability if any of the service’s users upload videos that infringe existing copyrights. One of the reasons Veoh is entitled to those protections is that it uses adequate technological safeguards to police the content its users upload.

So I don’t expect there is much of a chance that a new lawsuit against Scribd, a web site that hosts documents uploaded by its users, will will succeed or even survive a motion to dismiss for failure to state a claim, a procedural device that ends the lawsuit at its very beginning by means of a court determination that even if everything the plaintiff alleges is true she is not entitled to legal relief. As Geek.com reports, the lawsuit alleges copyright infringement by Scribd not because it hosts copyrighted materials but because the software it uses to detect copyrighted materials before they are published on the site allegedly uses copyrighted materials:

A children’s author in Texas has leveled a strange lawsuit against the company, claiming that the company infringes copyright, but not by hosting infringing works on its service.

No, her claim is even weirder: she maintains that Scribd prevents copyrighted material from being placed on the site by copying the text of copyrighted books and other publications into its copyright infringement detection software, which therefore infringes copyright itself!

The claim may not be as weird as Geek.com believes, though it is likely not to survive long. The original legal challenge to the Google Books Project by the Authors Guild and individual authors holding who were identified was premised largely on the contention not that Google was going to make those authors’ copyrighted works available. It wasn’t. It was only going to make those works searchable so that snippets could be brought up by researchers who could thereby identify and by library loan or purchase obtain relevant works they never otherwise would have found without traveling from Palo Alto, California to Ann Arbor, Michigan to Oxford, England. So what was the problem? The authors alleged that the fact Google was copying their works in their entirety to create the database that would yield the snippets constituted copyright infringement.

And in A.V. v. iParadigms, LLC, 544 F. Supp. 2d 473 (E.D. Va. 2008), aff’d in part and remanded, F.3d 630(4th Cir. 2009), plaintiffs were students who alleged that iParadigm’s Turnitin plagiarism detection system — used by schools throughout the country to detect plagiarism committed by students — constituted copyright infringement. Schools that use Turnitin require each student turning in a paper to submit it through Turnitin. Turnitin then compares the paper to its database and prepares a report that rates the similarities of the paper to papers in its database. In addition, Turnitin adds the paper it is rating to the database, thereby constantly growing and increasing the effectiveness of that database.

The students alleged that they owned the copyright in their papers and that IParadigms was infringing those copyrights by copying those papers and using them as part of the Turnitin database. But last March the federal court hearing the lawsuit dismissed it.

There are several interesting points to make about the decision. First, I read the trial court decision (that was later affirmed by the U.S. Court of Appeals for the 4th Circuit) on Scribd (here). Scribd is a tremendous resource for me — a lot of legal documents are not available online, and a lot of valuable ones that are available online are behind paywalls even though they cannot be copyrighted (including a lot of court decisions). Scribd is a solution to this problem, providing a central clearinghouse where lawyers can upload legal documents to make them available to the general public.

The value of resources like Scribd is one of the reasons I find criticisms like that Chris Castle directed at the decision in the Veoh case so maddeningly unhelpful. If one looks at sites like Veoh and Scribd as doing nothing but making available for free works that people would otherwise pay for, then it is much easier to rant and rave that those sites are nothing but distributors of stolen merchandise and to rationalize a stubborn refusal to admit that copyright must be balanced against strong competing interests in free speech and the exchange of ideas. But if you see these sites as profoundly gratifying resources that make the internet the greatest innovation in the history of information technology, the fact that media companies (and even independent writers, artists, and musicians) can readily identify infringing uses that do slip through detection programs does not seem so profoundly troubling. Those copyright owners can quickly employ the DMCA’s notice-and-takedown procedures, which many criticize as too friendly to the copyright holders.

Why would you use copyright to stifle marvelous new innovations? Copyright exists to encourage, not stifle, invention.

So a legal attack on Scribd, even if it is not as “weird” as it might seem on first blush, is something I will scrutinize carefully.

Second, it seems odd that Scribd would be attacked for committing copyright infringement resulting from a mechanism it is employing to minimize copyright infringement by its users and for which it is rewarded by the immunity conferred by the DMCA safe harbor provisions.

Third, a spokesperson for Scribd, as Wired reports, explains that Scribd does not copy works in their entirety as part of its copyright detection system; rather, it “creates a digital fingerprint, or a ‘hash,’ to identify infringing copies.”

Most importantly, even if Scribd did copy the entirety of the copyrighted works only to use those copies to prevent users from uploading and making available to readers those copyrighted works, the decision holding that Turnitin’s similar use of copies copyrighted materials to detect plagiarism is illuminating. The trial court, affirmed in this reasoning by the 4th Circuit Court of Appeals, explained that “iParadigms, through Turnitin, uses the papers for an entirely different purpose [than those the plaintiff did or could], namely, to prevent plagiarism and protect the students’ written works from plagiarism . . . by archiving the students’ works as digital code.” Thus, while the court recognized that iParadigms profits from its use of the student works, the court found that iParadigms’ use of plaintiffs’ works was “highly transformative” because it adds a “further purpose or different character” to the copyrighted works and “provides a substantial public benefit through the network of educational institutions using Turnitin.” Slip op. at 14.

In affirming the trial court’s decision, the 4th Circuit added to this reasoning and described as “clearly misguided” the argument that   Turnitin’s  use of the plaintiff’s copyrighted papers cannot be considered transformative “because the archiving process does not add anything to the work — Turnitin merely stores the work unaltered and in its entirety”:

The use of a copyrighted work need not alter or augment the work to be transformative in nature. Rather, it can be transformative in function or purpose without altering or actually adding to the original work. See, e.g., Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1165 (9th Cir. 2007) (concluding that Google’s use of copyrighted images in thumbnail search index was “highly transformative” even though the images themselves were not altered, in that the use served a different function than the images served). [Turnitin's] use of plaintiffs’ works had an entirely different function and purpose than the original works; the fact that there was no substantive alteration to the works does not preclude the use from being transformative in nature.

562 F3d at 639.

So let’s get it straight: what Scribd is doing is of tremendous value to society as a whole. It’s use of copyrighted works to minimize the availability on its site of copyrighted works is entirely different than and in no way diminishes the value of the copyrighted works to the owners of the copyrights. A copyright is not ownership of property like title to a car is — it does not give the owner control over any use of that car the owner doesn’t approve. There are a lot of good reasons for these differences. First, if someone else uses your car, you can’t. If someone else uses your copyrighted work, you can still use it too. If they use it for a use you never would have, what’s your problem? And if that other person’s use is doing a lot of good, why should the law confer on you a power to stop it? (Even your ownership of physical property is limited by restrictions imposed for the social good.) Finally, copyrighted works are works of expression, and we have a constitutional right to free expression. The limitation on copyright imposed by fair use is precisely a means of balancing the copyright holder’s interests against this profound social interest in free expression.

It’s an amazing world. In the name of legal rights that exist to promote progress and innovation, people everywhere are trying to stop revolutionary innovations they plainly don’t realize the value of. One of these days I’ll have to talk about the Google Book Project settlement and the fights raging in connection with it. Some are more legitimate than others. But let’s be clear: Google is trying to make available online for research purposes (not in ways that would displace the markets for the works themselves) the contents of major research libraries from around the world. Doesn’t everyone realize what an amazing and unprecedented advance this is for the life of the mind, for anyone anywhere who ever has had an interest in doing research?

Few people read them, but some online agreements are enforceable, and some aren’t; it’s a mess.

Just 3 days ago I wrote about two conflicting decisions concerning the enforceability of online contract provisions that do not require consumers to affirmatively click an “I agree” button. Well, today techdirt points me to a new court decision invalidating such a provision: according to MediaPost, the court “ruled that Internet retailer Overstock can’t enforce the manadatory arbitration agreement set out in its online terms and conditions because there is no evidence that consumers read the policy.” According to the decision, the plaintiff  ”lacked notice of the terms and conditions because the website did not prompt her to review the terms and conditions and because the link to the terms and conditions was not prominently displayed.”

As I wrote the other day, under all the court decisions I am aware of online sellers can ensure that their contracts are not invalidated on these grounds merely by requiring the affirmative act of clicking on an “I agree” button. As I read all of these decisions, online agreements that require the consumer to click “I agree” are enforceable despite the fact that consumers generally do not read the agreements.

To rule otherwise would overturn ages of decisions imposing on the consumer a “duty to read” that binds them to agreements they express agreement to even if they don’t understand what they are agreeing to. It would also leave open to dispute any online transaction that the consumer decided he or she didn’t like, a result that would mire our economy and courts in a mess to deep to contemplate.

There is a solution, however, and it’s one that hit a high gear 50 years ago only to peter out in the wake of our more recent passion for unregulated free markets — consumer protection laws that dictate what terms can and cannot be imposed on consumers. As the situation now stands, we are left with a patchwork effort to find traditional contract rules to come up with fair results (such as invalidating mandatory arbitration clauses that deprive consumers of any meaningful remedies for wrongdoing by online sellers).

In the meantime, I can only repeat what I wrote the other day:

Online sellers: if you want to be maximize the likelihood your agreements are enforceable, do what most online sites do — require your customers to click on a button that expresses their agreement before the transaction is complete.

Online buyers: be careful. Don’t believe that you’re getting what you think you’re getting. You’re only getting what the fine print says you’re getting. But if you do get screwed, remember too that even when you sign something it might be so unfair it is unenforceable.

I don’t think Glenn Beck raped and murdered a young girl, but why won’t he deny it?

Arts Technica reports that 2 days after the site glennbeckrapedandmurderedayounggirlin1990.com Beck’s media company “had contacted the domain registrar demanding that the “‘highly defamatory domain name’ glennbeckrapedandmurdered- ayounggirlin1990.com be deleted, that the WhoisGuard privacy protection service be revoked, and that the owner’s contact information be turned over to the lawyers.”

This is a classic case of an effort to “chill” speech you don’t like. Parody and political speech are protected by the First Amendment, but who wants to take on the costs of litigating against a media giant? One of my students asked the other day if there were any way for an individual to get funding to litigate against a large corporation. I explained that there really isn’t. If you’re really, really poor, you might get legal aid, but not likely even if you’re really, really poor to defend against a lawsuit like Beck’s. We have a brilliant legal system, but it’s been entirely distorted by inequalities of wealth and the expense that has become accepted as part of litigation. Someone with little legal merit to their claims or defenses can prevail merely by wearing down and exhausting the resources of their adversary.

I myself wouldn’t begin to conclude from seeing the domain name that there was any real evidence Glenn Beck had raped and murdered a young girl, but one expert in the article thought Beck’s lawsuit had enough merit that it can’t merely be brushed off:

“I don’t think ‘Ha ha it’s a joke’ at the end gets you off,” he says; if the parodic information is defamatory, it’s risky for the defendant in such cases. That’s complicated by the fact that the original domain name made the allegedly defamatory claim against Beck—and of course no one stumbling across the site in a search engine or elsewhere would see any disclaimer. In such cases, the domain name itself is a standalone piece of content; the disclaimer may help regarding the website content, but it won’t necessarily transfer a cone of protection to the domain name as well.

This is what we get when we take seriously allegations like the one that Obama wants to euthanize my mom (would she be so lucky! — sorry, that’s an entirely different and very personal topic).

ADDENDUM: Beck does want to beat Rep. Charles Rangel to death with a shovel, and he wants to kill other people, right?

ADDENDUM 2: This guy Beck may or may not be a rapist and murderer (but why won’t he just prove his innocence?), but he is definitely a first-rate parodist, pointing out the Communist propaganda hidden in New York City. Who knew John D. Rockefeller was really a communist, and that Isaiah’s timeless call to beat swords into plowshares is really an ancient “progressive” plot? He’s hilarious. Everyone does just laugh at this stuff, right?

Doing justice is not calling balls and strikes, and to say it is is un-American.

Law is not a matter of “calling balls and strikes.” Rules in baseball define the strike zone, and there is no reason to suppose those rules should change from game to game or batter to batter.

As I need to begin explaining on Monday to my new law students, to suppose that all one needs to do is know the rules and apply them to the infinite complexities of life to come up with decisions, they are sorely mistaken. Edward H. Levi, in a 1948 law review article later expanded into a seminal book, An Introduction to Legal Reasoning, introduces the complexities of legal analysis as well as anyone I have ever read. As he explains, rules announced in earlier cases are applied as is or changed depending on the degree to which the later case is similar or different than the earlier case in which the rule was originally announced:

Thus it cannot be said that the legal process is the application of known rules to diverse facts. Yet it is a system of rules; the rules are discovered in the process of determining similarity or difference. But if attention is directed toward the finding of similarity or difference, other peculiarities appear. The problem for the law is: When will it be just to treat different cases as though they were the same? A working legal system must therefore be willing to pick out key similarities and to reason from them to the justice of applying a common classification. . . .

Edward H. Levi, An Introduction to Legal Reasoning, 15 U. Chi. L. Rev. 501, 501-03 (Spring 1948)(emphasis added; citations omitted).

So if it turns out that a court is ruling in a case in which a criminal defendant who has been convicted of murder but in the twenty years since the crime “[seven] key witnesses have . . . recanted, and several people have charged that the main prosecution witness was the shooter,” it would seem worthwhile before executing the defendant to hold a hearing to determine whether in fact he is innocent. Certainly there must be some amount of evidence that could turn up years after a murder conviction that would convince just about anyone of the convicted man’s innocence.

Would it make sense in a country that requires “due process of the law” to refuse consideration of the new evidence, no matter how strong? Of course not. It is a justice system. It is fair to say, I think, that it is fundamental to American values that we do not execute people for crimes we know they are innocent of.

But what if a court had never permitted a hearing to prove a convicted man’s innocence before? Should that stop the court from permit the new hearing in the new case? Levy’s account of how the law works makes plain that is not the case. The new case is different than the old one in that the post-conviction evidence of innocence is so strong that it simply isn’t similar enough to all the cases in which new hearings were denied to conclude the court could never order a new hearing.

That, however, is exactly what Justice Scalia, joined by Justice Thomas, wrote yesterday:

This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. (emphasis in original)

My point is that it is irrelevant as a matter of legal analysis that the court has never held that the Constitution forbids the execution of a convicted murderer who can convince a court (via the constitutional right to a writ of habeus corpus) that he is innocent. Scalia, Thomas, and commentators like Andrew Sullivan are simply wrong on this one. The implication of their logic is that if we knew we were executing an innocent man for a murder he had been convicted of the overriding concern with procedural rules, not justice, would prevent our justice system from doing anything.

That’s bullshit. I apologize for my language, and I hope I would never use it in the classroom, but this particular reasoning by Scalia and of those who would justify it is no part of a justice system, and it is no part of the way U.S. courts have always operated.

Amazon, EULAs, and Orwell’s memory hole.

Can Amazon take back from y0ur Kindle a book you thought you’d purchased? Well, it did exactly that — Kindle owners who’d obtained ebooks of George Orwell’s 1984 and Animal Farm discovered last week that Amazon had simply deleted those books from their Kindles. No one seems to have known Amazon could do that — the fact the Kindle connects electronically to the internet has until now always been considered a reason the Kindle is better than competing ebook readers.

But did Amazon have the contractual right to do what it did?

The first thing to note is that you don’t “buy” ebooks from Amazon. As the Kindle’s End User License Agreement (“EULA”) states, you merely purchase a “license” to use the ebooks. The license is the right to use the ebooks under the terms of the EULA.

But does the EULA allow Amazon to unilaterally take back a book? I’m not so sure. I think likely Amazon is in breach. Nowhere in the agreement do I see any provision that gives Amazon the right to do what it did. Moroever, the EULA states that the license is one to keep a “permanent” copy of the text you are obtaining and to view, use, and display that text an “unlimited number of times”:

Upon your payment of the applicable fees set by Amazon, Amazon grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times.

The fact Amazon refunded the price of the Orwell books would not excuse its breach. You can’t enter a contract and then unilaterally tell the other side to the deal you want to undo it.

So Amazon may indeed be in breach. But does it matter? First, it would be difficult to prove any damage over and above the “purchase” price, which Amazon has refunded. But there are two more important points. First, as I’ve written before about EULAs, anytime you enter one online you are probably agreeing that the agreement can be amended at any time without even any notice to you. Amazon may simply argue that its recall of the books was an amendment of the agreement.

Second, what are you going to do, sue? You can’t. The EULA requires any dispute arising under it to be arbitrated in Seatlle! Are you going to go to the trouble of hiring a lawyer in Seattle to start an arbitration proceeding so that you might be able to recover a few more bucks? Of course not.

Actions like these are why class actions exist — where a company engages in actions that cause small amounts of damage to many people, it’s not worth any individual’s time or money to pursue a remedy, and even if it were the remedy is so small that the company’s gains from the improper conduct are worth it. As Wikipedia explains:

[A] class action may overcome “the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997) (quoting Mace v. Van Ru Credit Corp., 109 F.3d 388, 344 (7th Cir. 1997)). “A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone’s (usually an attorney’s) labor.” Amchem Prods., Inc., 521 U.S. at 617 (quoting Mace, 109 F.3d at 344). In other words, a class action ensures that a defendant who engages in widespread harm – but does so minimally against each individual plaintiff – must compensate those individuals for their injuries. For example, thousands of shareholders of a public company may have losses too small to justify separate lawsuits, but a class action can be brought efficiently on behalf of all shareholders. Perhaps even more important than compensation is that class treatment of claims may be the only way to impose the costs of wrongdoing on the wrongdoer, thus deterring future wrongdoing.

But you can’t bring a class action in arbitration. That’s why all these EULAs require arbitration — so that there’s no opportunity for a class action that would impose on the company the real damages it would be liable for to all the people it has wronged by its conduct.

Pretty clever, eh? Just remember, when you push for “tort reform,” you’re really looking to benefit wrongdoers, not to right the defects of a “broken” litigation system.

ADDENDUM: Maybe there is hope after all – in Harris v. Blockbuster, a federal district court in Texas ruling under Texas state law refused to enforce an arbitration provision precisely because the contract provided a unilateral right to amend. I’ve got to research this point more, but it seems on its face to be consistent with Texas law. I see reason, though, to think it wouldn’t be under the law of many states. The court says the agreement to arbitrate is “illusory” because it can be amended without notice. I would think that in most states the un-amended contract would be enforceable and terms that were added by amendment MIGHT be deemed illusory.

The EFF surely wants Jammie Thomas not to settle at any price, while the RIAA, even though it won $1.92 from a jury, surely wants her to, likely for any price.

Mike Masnick of Techdirt reports that the RIAA is anxious to settle the case in which it won $1.92 million from Jammie Thomas-Rasset for illegally downloading 24 songs. As Masnick writes, the RIAA “seems to recognize that the insanity of the $1.92 million doesn’t do it any favors. Even the musicians whose music was part of the case are embarrassed by the amount. . . . the RIAA would love to settle the lawsuit for some lower amount so it can run around touting the ‘risks’of file sharing without having people laugh outloud when hearing that someone had to pay $1.92 million for potentially sharing 24 songs that could be bought for $1 each.”

Masnick writes too that he’s been expecting Jammie Thomas to settle “but the longer this goes on, the more I wonder if she’s actually planning to fight on. If so, this could certainly represent a case to examine the statutory rates associated with copyright violations.”

Mike is more right than he may know. Any lawyer interested in challenging the constitutionality of the statutory penalties imposed by the Copyright Act would want to represent Jammie Thomas on this appeal. When a lawyer looks to challenge a law, if he’s got any sense he doesn’t challenge it via any case that happens to come up. He chooses a case that presents especially good facts for the challenge. The EFF would love to have Jammie Thomas appeal – no case involving a defendant found liable for illegal downloading would be a better vehicle for bringing the challenge to the statutory penalties.

We can only “fix” the medical malpractice “problem” if we fix all the problems we use medical malpractice to address. Universal coverage and medical malpractice cannot be separated from one another.

Walter Olson asks what we’re getting from our medical malpractice system — with “jury trials, contingency fees, lack of loser-pays, extensive lawyer-driven discovery” — that Canada, at 10% of the cost for its medical malpractice system does not. It’s only part of the question. Olson quotes Richard Epstein, who states “American judges frequently let juries decide whether honest mistakes are negligent. Judges in other nations are less likely to do so. American courts commonly think it proper for juries to infer medical negligence from the mere occurrence of a serious injury. European judges usually will not.”

Why is this going on? Is it just madness? Of course not. What Epstein and Olson ignore is that patients in Europe and Canada have national health insurance that will pay for the costs of medical care necessitated by inevitable — even if honest and non-negligent — bad outcomes that result from medical malpractice.

We can’t just “fix” the malpractice “problem” unless we fix the problem of being sure patients who suffer bad medical outcomes (a risk we’re all exposed to) being unable to pay for the care required by those outcomes. Why does Canada only spend 10% what the U.S. does on malpractice? Because Canada has national health insurance to pay for that care.

It worked for businesses with workers’ comp. Why not a no-fault liability system to pay for medical care and other consequential financial loss flowing from any bad medical outcome?

When law doesn’t match up to reality, law loses – Connie Schultz makes an unworkable proposal.

I deeply admire Connie Schultz, but I think she was mistaken in her column yesterday that called for a change to federal copyright law that would give “news originators” the exclusive right to the news they report on their web sites for the first 24 hours after publication. The “remedies” to enforce this exclusive right would include (1) a requirement that online “aggregators” would have to “reimburse newspapers for ad revenues associated with their news reports” and (2) “injunctions” to “bar aggregators’ profiting from newspapers’ content for the first 24 hours after stories are posted.”

Ms. Schultz shows her desperation to save newspapers in calling for immediate action, implying that waiting even 6 months before enacting this law would be to wait too long.

There’s a lot wrong with this proposal I won’t go into right now with respect to the purposes of copyright law (h/t to Natalie Gauthier, on Twitter @nggautier). Here’s my problem with it merely in my capacity as a business advisor (as much a part of being a commercial lawyer as knowing the law). It’s utterly unworkable. An injunction against use is no remedy — to be effective, an injunction needs to be enforceable. How in the world is a newspaper going to enforce its exclusive right to a story against use by anyone anywhere in the world on the internet? Second, to whom do these rights and restrictions really apply? Who’s a news source? Am I when I publish something online based on my own research and thinking? When is what I publish my own research and thinking and when is it merely “aggregation.” And am I an aggregator, or just a unicellular organism floating in the vast oceans of the information and news available around the world? When would I cross the line?

It’s an utterly unworkable proposal.

I have a lot of sympathy for Ms. Schultz and her position. I’ve grown up worshiping journalists. (To be an adolescent leftist poseur back in the early ’70′s meant worshiping the New York Times and the Washington Post.) And, as my dad complains, there is a really profound problem in the loss of the check newspapers have traditionally provided with respect to local events.

But there’s no going back. Law is not going to stop the inevitable consequences of the change in technology we’re experiencing. I’m not suggesting we’re in for a wonderful new world. We’re losing a lot, and I share with Ms. Schultz the desire to save it all. But we’re not going to. We’re going to have new things. Here’s one, for example, courtesy of the artist Daniel Nolan (on Twitter @danielnolan). There’s been very little news out of Iran. What’s going on in the streets, if anything, is a matter of intense interest around the world, but newspapers have largely been rendered unable to report on events thanks to the moves of the Iranian regime. But yesterday I received a tweet from Dan that referred me to Andrew Sullivan’s blog that was reporting that instead of appearing in front of his supporters in person Mir-Hossein Mousavi “instead delivered a speech to his supporters via cell phone. The speech was then captured on camera by a demonstrator, uploaded to Facebook, picked up on Twitter, and delivered to you through this blog. And now it’s on YouTube.” As Dan put it on Twitter, “[i]f scoring at home, that’s Mousavi – cell phone – camera – facebook – twitter – blog – youtube. Now that’s an alternative info stream.”

I’m not suggesting that is the equivalent of haveing a foreign corresondent on scene (but there are no western jounralists in Tehran as far as I know), but it’s extraordinary. There have got to be better ways than Ms. Schultz’s ill-conceived proposal to make the transition to what the new technology makes available and what the new technology makes inevitable. The way is not going to be through a rather simple law. When law doesn’t match up with reality, law loses, but worse, so do we. Make intoxitants illegal, and our prisons become jammed with non-violent offenders. Don’t provide legal means to immigrants motivated to get here, and you end up with millions of undocumented residents. Outlaw abortion and you expose the poor to unregulated and unsafe medical procedures. Refuse to adapt the marketing of your product to new technologies, and engage in ineffective litigation that results in blatant injustice. . .

What in God’s name is wrong with same sex marriage?

What in God’s name is wrong with same sex marriage? I truly cannot comprehend it, and the failure to recognize it in most of the country has led to genuine pain and hardship to families who should not have to experience that discrimination in the U.S.A.

The case for allowing same sex marriage was made quite well by the Supreme Court of  California last year, in the decision California citizens felt so threatened by they just had to pass Proposition 8. I quote below from it at some length. Page numbers reference the pages in the pdf copy of the opinion:

At 7: [T]he substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own – and, if the couple chooses, to raise children within that family – constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society.

At 11: [T]the purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California’s current marriage statutes – the interest in retaining the traditional and well-established definition of marriage - cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest.

At 11-12:  First, the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples. Second, retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples. Third, because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples. Finally, retaining the designation of marriage exclusively for opposite sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise – now emphatically rejected by this state – that gay individuals and same-sex couples are in  Some respects “second-class citizens” who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples. Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.

47, n. 27: If a comprehensive domestic partnership law had not been enacted in California, and if plaintiffs had brought a constitutional challenge to the California marriage statutes and our court had concluded that those statutes were unconstitutional because they did not afford same-sex couples rights and benefits equal to those available to opposite-sex couples under the marriage statutes, we might well have further concluded – as other state courts have determined in similar situations – that the appropriate disposition would be to direct the Legislature to provide equal treatment to same-sex couples, leaving to the Legislature, in the first instance, the decision whether to provide such treatment by a revision of the marriage statutes or by the enactment of a comprehensive domestic partnership or civil union law. (See Baker v. State, supra, 744 A.2d 864, 886-889; Lewis v. Harris, supra, 908 A.2d 196, 221-223.)

Because the California Legislature already has enacted a comprehensive domestic partnership law which broadly grants to same-sex couples virtually all of the substantive legal rights and benefits enjoyed by opposite-sex married couples, plaintiffs have been relieved of the burden of successfully prosecuting a constitutional challenge to obtain those substantive rights and benefits. Thus, in this proceeding, we are faced only with the narrower question that logically ensues: whether, in light of the enactment of California’s domestic partnership legislation, the current California statutory scheme is constitutional.

57: As these and many other California decisions make clear, the right to marry represents the right of an individual to establish a legally recognized family with the person of one’s choice, and, as such, is of fundamental significance both to society and to the individual. (footnote omitted)

 At 66: In light of the fundamental nature of the substantive rights embodied in the right to marry – and their central importance to an individual’s opportunity to live a happy, meaningful, and satisfying life as a full member of society – the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation. (footnote omitted).

At 69-70: In light of this recognition, sections 1 and 7 of article I of the California Constitution cannot properly be interpreted to withhold from gay individuals the same basic civil right of personal autonomy and liberty (including the right to establish, with the person of one’s choice, an officially recognized and sanctioned family) that the California Constitution affords to heterosexual individuals. The privacy and due process provisions of our state Constitution – in declaring that ”[a]ll people . . . have [the] inalienable right[] [of] privacy” (art. I, § 1) and that no person may be deprived of “liberty” without due process of law (art. I, § 7) – do not purport to reserve to persons of a particular sexual orientation the substantive protection afforded by those provisions. In light of the evolution of our state’s understanding concerning the equal dignity and respect to which all persons are entitled without regard to their sexual orientation, it is not appropriate to interpret these provisions in a way that, as a practical matter, excludes gay individuals from the protective reach of such basic civil rights.

At 79: Accordingly, we conclude that the right to marry, as embodied in article I, sections 1 and 7 of the California Constitution, guarantees same-sex couples the same substantive constitutional rights as opposite-sex couples to choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage. (footnote omitted)

 At 103: [W]we conclude that in the present context, affording same-sex couples access oly to the separate institution of domestic partnership, and denying such couples access to the established institution of marriage, properly must be viewed as impinging upon the right of those couples to have their family relationship accorded respect and dignity equal to that accorded the family relationship of opposite-sex couples.

At 105: [W]e conclude that the distinction drawn by the current California statutes between the designation of the family relationship available to opposite-sex couples and the designation available to same-sex couples impinges upon the fundamental interest of same-sex couples in having their official family relationship accorded dignity and respect equal to that conferred upon the family relationship of opposite-sex couples.

At 106: In the present case, the question before us is whether the state has a constitutionally compelling interest in reserving the designation of marriage only for opposite-sex couples and excluding same-sex couples from access to that designation, and whether this statutory restriction is necessary to serve a compelling state interest. In their briefing before this court, various defendants have advanced different contentions in support of the current statutes, and we discuss each of these arguments.

109: We disagree with the Attorney General and the Governor to the extent they suggest that the traditional or long-standing nature of the current statutory definition of marriage exempts the statutory provisions embodying that definition from the constraints imposed by the California Constitution, or that the separation-ofpowers doctrine precludes a court from determining that constitutional question.

On the contrary, under “the constitutional theory of ‘checks and balances’ that the separation-of-powers doctrine is intended to serve” (Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 53), a court has an obligation to enforce the limitations that the California Constitution imposes upon legislative measures, and a court would shirk the responsibility it owes to each member of the public were it to consider such statutory provisions to be insulated from judicial review.

At 111: By the same token, the circumstance that the limitation of marriage to a union between a man and a woman embodied in section 308.5 was enacted as an initiative measure by a vote of the electorate similarly neither exempts the statutory provision from constitutional scrutiny nor justifies a more deferential standard of review.

At 113: Although defendants maintain that this court has an obligation to defer to the statutory definition of marriage contained in section 308.5 because that statute – having been adopted through the initiative process – represents the expression of the “people’s will,” this argument fails to take into account the very basic point that the provisions of the California Constitution itself constitute the ultimate expression of the people’s will, and that the fundamental rights embodied within that Constitution for the protection of all persons represent restraints thatthe people themselves have imposed upon the statutory enactments that may be adopted either by their elected representatives or by the voters through the initiative process. As the United States Supreme Court explained in West Virginia State Board of Education v. Barnette (1943) 319 U.S. 624, 638: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

At 116-119: After carefully evaluating the pertinent considerations in the present case, we conclude that the state interest in limiting the designation of marriage exclusively to opposite-sex couples, and in excluding same-sex couples from access to that designation, cannot properly be considered a compelling state interest for equal protection purposes. To begin with, the limitation clearly is not necessary to preserve the rights and benefits of marriage currently enjoyed by opposite-sex couples. Extending access to the designation of marriage to same sex couples will not deprive any opposite-sex couple or their children of any of the rights and benefits conferred by the marriage statutes, but simply will make the benefit of the marriage designation available to same-sex couples and their children. As Chief Judge Kaye of the New York Court of Appeals succinctly observed in her dissenting opinion in Hernandez v. Robles, supra, 855 N.E.2d 1, 30 (dis. opn. of Kaye, C.J.): “There are enough marriage licenses to go around for everyone.” Further, permitting same-sex couples access to the designation of marriage will not alter the substantive nature of the legal institution of marriage; same-sex couples who choose to enter into the relationship with that designation will be subject to the same duties and obligations to each other, to their children, and to third parties that the law currently imposes upon opposite-sex couples who marry. Finally, affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs. (Cal. Const., art. I, § 4.) (f00tnote omitted)

While retention of the limitation of marriage to opposite-sex couples is not needed to preserve the rights and benefits of opposite-sex couples, the exclusion of same-sex couples from the designation of marriage works a real and appreciable harm upon same-sex couples and their children. As discussed above, because of the long and celebrated history of the term “marriage” and the widespread understanding that this word describes a family relationship unreservedly couples and same-sex couples and exclude the latter from access to the designation of marriage, we conclude these statutes are unconstitutional. sanctioned by the community, the statutory provisions that continue to limit access to this designation exclusively to opposite-sex couples – while providing only a novel, alternative institution for same-sex couples – likely will be viewed as an official statement that the family relationship of same-sex couples is not of comparable stature or equal dignity to the family relationship of opposite-sex couples. Furthermore, because of the historic disparagement of gay persons, the retention of a distinction in nomenclature by which the term “marriage” is withheld only from the family relationship of same-sex couples is all the more likely to cause the new parallel institution that has been established for same-sex couples to be considered a mark of second-class citizenship. Finally, in addition to the potential harm flowing from the lesser stature that is likely to be afforded to the family relationships of same-sex couples by designating them domestic partnerships, there exists a substantial risk that a judicial decision upholding the differential treatment of opposite-sex and same-sex couples would be understood as validating a more general proposition that our state by now has repudiated: that it is permissible, under the law, for society to treat gay individuals and same-sex couples differently from, and less favorably than, heterosexual individuals and opposite-sex couples.

In light of all of these circumstances, we conclude that retention of the traditional definition of marriage does not constitute a state interest sufficiently compelling, under the strict scrutiny equal protection standard, to justify withholding that status from same-sex couples. Accordingly, insofar as the provisions of sections 300 and 308.5 draw a distinction between opposite-sex couples and same-sex couples and exclude the latter from access to the designation of marriage, we conclude these statutes are unconstitutional.

The MPAA explains how to show DVD clips in the classroom (the easy way?)

More lobbying to ridicule! From Ars Technica comes a video shown by the Motion Picture Assocation of America to the U.S. Copyright Office as “part of the triennial DMCA exemptions review.”  

In the video, the MPAA suggests that teachers who want to use movie clips as part of their curricula should use a camcorder to record the movie off of a TV set, and that this is an acceptable way to use video clips without breaking a DVD’s copyright protections. 

Good lawyers are not terrorists.

There is a pronounced tendency among non-lawyers to believe the best lawyer is the most belligerent lawyer, the one most willing to make things difficult for the other side. A certain segment too of beginning law students believe their professional role will be to make their adversaries’ lives as difficult as possible not by being smarter and more persuasive but, rather, by being more of a pain in the butt.

First, this attitude is very wrong-headed. Mindless aggression can be effective, but only when matched against mindlessness. A smart lawyer can calmly run circles around mindlessly aggressive lawyers. Fortunately, as well, the court system has its limits. The Blog of the Legal Times reports that a court ruled that Robert Fastov, a D.C. art dealer who also happens to be a Stanford Law School graduate, “must pay more than $630,000 in attorney fees and expenses to Christie’s for a suit a judge said only served to harrass the auction house after it refused to sell a painting . . . .”

Typically, and almost always, both plaintiffs and defendants in U.S. lawsuits pay their own costs of litigating, win or lose. In fact, this rule is known as the “American Rule.” The “English Rule” requires the losing party to pay the winning party’s costs. Thus, in England, far fewer individuals sue corporations because the individuals know the corporations can afford to pay the plaintiff’s costs, while the plaintiff cannot afford to pay the corporations’ costs of defense.

But, as the Fastov case indicates, someone can act so egregiously in U.S. courts that he will be charged with the costs of his adversary’s lawyers. The interesting part of the decision is that the court does not discuss the merits of the plaintiff’s lawsuit (which were plainly non-existent); rather, the decision affirmed a trial court decision that focused on the enormous size of the briefs and the enormous number of documents the plaintiff submitted in the case, making the point quite clearly that the mass of materials was useless merely because it was such a mass. As the trial court’s decision (pdf) explains:

In response to defendants’ motion for summary judgment, plaintiff has attempted to file a 59-page opposition, a 90- page declaration in support of his opposition, a 461-page statement of disputed and undisputed facts, and three volumes of exhibits totaling approximately 1,500 pages. A first-year law student is taught that a filing in support of or in opposition to any motion should be tailored to achieve the paramount goal of assisting the Court in rendering its decision. Plaintiff’s filing does the opposite. It is an abuse of the litigation process.

The crucial point: A first-year law student is taught that a filing in support of or in opposition to any motion should be tailored to achieve the paramount goal of assisting the Court in rendering its decision. A lawyer’s job is to give the judge the tools to rule in his client’s favor. Your job is not to give the court a bunch of information from which the court can derive its own decision and reasons. If you explain to a court in a convincing fashion why your client should win, the court is likely to adopt your reasoning and rule for your client. I have even had courts cut and paste my brief into their opinions. When they’ve done so I haven’t felt plagiarized; I’ve felt vindicated.

Neither is your job to so overwhelm the other side they want to give up. That, plainly, was Fastov’s intent. After Christie’s had refused to sell a painting Fastov owned, he sent Christie’s a 79-page letter, with hundreds of pages of attached exhibits, threatening to sue for damages “in excess of $265,000″ and “punitive damages in an amount to be determined, but considerably in excess of $1,000,000.” He also explained that “the cash outlays that Christie’s will, to a legal certainty, have to make (and will not recover, even if Christie’s wins) to defend the litigation will be approximately $221.3K (very conservatively understated) or (more realistically) well in excess of $300K.” He went on to threaten dire consequences if his demands weren’t met:

[I]f you decide for tactical purposes to delay your response beyond my three week deadline, Christie’s costs of settlement will increase appreciably. If you decide to wait to see if I actually file the suit before approaching me to discuss settlement, you will find that the chances of achieving settlement are virtually nil, unless Christie’s is prepared to reimburse me for all of my costs to date of settlement and pay all of my compensatory damages, which will be well in excess of $265K, and an extremely high percentage of the amount of punitive damages prayed for in the complaint, which shall be in the millions of dollars. . . . Do not bet against my inclination, will, ability, experience, and tenacity to file and successfully maintain [Fastov v. Chritie's] through to its successful conclusion. It will be the worst and most costly conclusion and bet of your life. The settlement proposals and the purposes of this letter are inherently pacific in nature. If you and Christie’s force me to go to war, those who have litigated for, with, and against me will tell you that I am extremely tough, intelligent, and tenacious. I give no quarter and ask none, and above all, I will take any and all actions, both within and without the courtroom, that do not violate the rules of professional conduct, necessary to achieve Christie’s unconditional surrender.

When Christie’s failed to give in to his threats, Fastov filed a 225 page (!) complaint. The complaint begins the lawsuit. The motion for summary judgment (in connection with which he filed approximately the 2,100 pages referred to above) is an effort to dispose of the case before trial. If you need that much paper to convince a court you’re right, you’re either inept or your merely engaged in terror. More likely, you’re both inept and engaging in terror, as was Mr. Fastov. Your job in a lawsuit is to get the court on your side, not to destroy the opposition. If clients and lawyers understood this was the purpose of litigation we all, lawyers and clients, would be better off.

Fix the law, but don’t forget what the law has already tried to fix.

Opinions about law tend to focus on its defects, and there are plenty of those.  What too many of those opinions ignore, however, is that law is rarely arbitrary or one-sided.  There are imperfections, but those imperfections are flaws in an effort to address real problems.  To fix the flaws in existing law without attending to the problems that law addresses is to trade one set of problems for another, often bigger, one.

The U.S. legal system is an immensely complex product of decisions made in courts, legislatures, and administrative agencies at the federal level as well as the state and local level.  When one considers the monumental number of individual decisions that make up the workings of those tens of thousands of jurisdictions and the fact that law persists over time until it is changed, it is plain that the “law” is the product of a massive collective wisdom.

That is not to say the system is perfect — it is far from perfect, and its complexity is in no small part directed at perpetually refining the defects that perpetually appear as new problems arise in new contexts that include new ways of looking at things.  Not only do we continually face new facts, but what we think and feel about those facts always changes.  As Nicholas Kristoff points out this morning, for example, new industrial farming methods and new ideas about the morality of ignoring the suffering of animals is has produced “a broad push in Europe and America alike to grant increasing legal protections to animals.”

But my point today isn’t about new law — it’s about the efforts to fix existing law.  If one is going to do so in an effective way, it is not enough to identify a problem and eliminate it.  One must also figure out what the existing law is trying to do.  Medical malpractice is a lottery, giving big awards to certain injured plaintiffs while leaving most uncompensated.  It also does a less than optimal job at distinguishing between negligent doctors and non-negligent doctors who, after all, practice a profession in which perfect performance will not necessarily lead to a good outcome.  It also likely increases the costs of health care by forcing doctors to practice “defensive medicine.”

But if one produces a solution that merely solves these problems without recognizing the problems the system is trying to address, one is merely serving one set of interests.

There are two major reasons the medical malpractice system operates the way it does.  Patients suffer major harm from medical procedures, and they can’t afford to pay for the care that harm requires.  In addition, the threat of liability has made the standard of care in U.S. health care the highest in the world.  (It’s an interesting instance of selective vision, I think, that political opposition to medical malpractice and to universal health care come from the same political sector and the opposition to universal health care is based on a promotion of the superior quality of U.S. health care, as if that quality has nothing to do with the incentives imposed by the threat of medical malpractice.)

Thus, I wrote recently in connection with Philip K. Howard’s Life Without Lawyers: Liberating Americans from Too Much Law, that if “doctors really want to reduce malpractice problems in a way that will satisfy everyone . . . [they should] create a patients’ compensation law that provides relief to patients injured by adverse medical outcomes.”  I am gratified to realize I am not alone in my thinking.  Writing today in the New York Times in response to Mr. Howard’s one-sided solution to the problems of the malpractice system, Clifford Allo points out that the biggest problem — the one the existing system is an imperfect remedy for and that Mr. Howard ignores — is that patients who suffer hard resulting from medical procedures (a risk we all face all the time no matter how perfect our doctors might be) are not provided the financial means to live with that harm:

The biggest reason for bringing the most expensive malpractice claims – for example, adverse incidents at birth – is to find some source to pay for long-term care. A single-payer system would provide that care without threatening any doctor’s personal wealth.

We use the courts to allocate yesterday’s fault so that tomorrow’s bills may be paid. If tomorrow’s care were assured, care review could focus on quality assurance rather than on fault. We need to overcome the ideology that prefers private profit to universal security.

And Jerry Frankel, a doctor, writes that Sweden already has a system like the one I described:

The problem with the proposal advocated by Philip K. Howard is that it’s very difficult in most injuries to discern negligence from an unfortunate complication or complications.

Honest, objective medical experts often can’t agree about what is the standard of care, much less whether a complication was negligence or not.

In Scandinavia, anyone who suffers a major medical injury is compensated by a no-fault system where the compensation has been set based on the type and severity of injury. This eliminates our lottery system, where few patients are compensated at all.

Physician report cards are maintained to protect the public from bad doctors, but no-fault liability payments are not part of doctors’ evaluations.

Patients in this system have the ability to opt out and sue, but if they lose in court, they lose their no-fault option. Few, if any, opt out.