The Don--who came up with these names?--asked me if I would comment on the Lori Drew verdict. Instead of posting on his blog, I figured I'd post here and link from there, thus keeping all the juicy page views for me and my Google AdWords empire (I kid, I kid).
The general story here is that person did something most folks agree was bad, but since none of our existing criminal statutes really fit the action in question, the prosecutors in the case used the Computer Fraud and Abuse Act to seek conviction for what amounts to a violation of the MySpace Terms of Service. The Don expressed understandable apprehension to the idea that a corporation like Amazon could wield their TOS in such a way as to make site visitors into felons. But first a little context might assist in seeing if this is really a sign of the end of the world, or just another day in America.
Let's start with the concept of trespass law. Now, there are some folks who say trespass law is stupid and people should be able to go where ever they like. If you fall into this group, you can just stop reading now, because I can't help you. But assuming you agree that trespass law is good and proper, you have to ask yourself some questions. Consider your personal dwelling. If someone comes into your house uninvited they are obviously trespassing. It's a clear cut case and criminal prosecutors will have no problem getting a conviction. Let's change the fact pattern slightly and say instead of a house, it's a store with a large public area for browsing the merchandise, and an employees' only area in the back. Now, if someone goes into the public space, they aren't trespassing, right? They have been invited into the space by the owner and are what we in the legal business would call an invitee. But once the visitor goes into the employees' only space, they move from the invitee column into the trespasser column.
The question then is what makes the distinction between the public space where you're an invitee and the private space where you're a trespasser? The answer is private law. In the case of the store it's enforced by a little sign posted on the door to the employee area that says "Employees Only." Two little words, perhaps, but two words backed by the power of the state penal system. Essentially what we've done is say in the law "we think there are some places you shouldn't be able to go, but since we can't specify all those places, we are going to empower private law to specify on a case-by-case basis." Now, of course, there are limits, like clear notice and the moderating force of a jury. I realistically can't imagine a jury convicting someone mistakenly entering into an employee area, no matter how well marked it may have been.
These same principles apply to the internet just as well as they do to the physical word. In fact, there is a rather famous example of this sort of private law backed by criminal law that is clear as day... it's called the DMCA. I wrote a post years ago on this very topic, feel free to read it if you have a moment. Owners of copyrighted materials can seek federal criminal prosecution if you break a "technological measure," which could really be just as simple as a little button that says don't copy me. The slashdot crowd goes crazy over this... how can it be a crime to break such a stupid technological measure, they demand to know! To which I ask, is it any more or less of a crime if I break into a locker with a tiny pad lock instead of a huge deadbolt? I certainly shouldn't think so.
Which brings us back around to the Lori Drew verdict. MySpace makes clear that you are an invitee into their online space so long as you conform to their Terms of Service. The moment you stop conforming to their TOS, you become a trespasser... just as if you had entered into the employees only area. This isn't to say that every violation of an online TOS is going to result in criminal prosecution, because we have prosecutors, judges, and juries all in the business of continuously evaluating what is and isn't worth prosecuting on a day-by-day basis. Just because you engage in felonious acts doesn't make you a felon, or we'd all be in the slammer. What it does mean is if you engage in activity that you know is wrong--even if that activity is solely online--and it ends up with someone dying, you'd best get yourself a lawyer.
Showing posts with label law. Show all posts
Showing posts with label law. Show all posts
Wednesday, December 03, 2008
Sunday, June 15, 2008
On Citzenship, the 14th Amendment, and Political Discourse
Unless you live in a some sort of political cave, by now you know the United States Supreme Court ruled that the denial of Habeas Corpus to detainees held in Guantanamo Bay by the Military Commissions Act of 2006 is unconstitutional. It was a 5-4 split decision with the dissenters saying some very nasty things that makes one think they were not talking to the legal world at large, but rather trading in fear mongering so often employed by those convinced of the "Islamofascist" threat. However, it is not my intent to quibble with either side of the decision... I think it's pretty clear I support the majority's approach here. No, my problem is with the political discourse that has emerged since the decisions announcement.
Republicans in Congress, in particular Senators who have enough personal clout to actually matter, have declared they will do whatever it takes to undo this "harmful" decision. John McCain and Lindsay Graham have both spoken of legislative efforts to narrow the scope of the decision. This, in of itself, is fine. In fact, it's what is supposed to happen. The political branches make a law, the Court review the law with facts, rules whether it passes Constitutional muster, and if it doesn't, the political branches go and give it another try. The problem is when these Senators craft their words as combative... that they will fight for the little guy to see justice done in the face of an evil, overbearing Supreme Court. It makes it sound as if the Senators are white knights out to rectify deep wrongs inflicted upon the helpless, regardless of the consequences. Passing over the obvious fact that it is the Courts, not the Congress, that is trying to grant some small level of humanity to the helpless, this sort of dialog only serves to tarnish the view of the Court in the public eye. The long term consequences of that tarnishing is no worse that the presidential reputation destroying effects of the last eight years of the Bush Administration. The Courts are our courts, and when we tear them down, we do ourselves no service.
This, however, is just a minor quibble... my real objection is to the language used to vilify not the Court itself, but the decision they rendered. Here is a typical example from John McCain, "[the detainees] are not citizens, they do not have the rights of citizens." This is a true statement. The detainees are not citizens, and ergo do not have the rights of citizenship. So what?
Implicit in Sen. McCain's language is that the rights granted by the Constitution are to be enjoyed by citizens, and citizens alone. Three interesting observations emerge from the language.
First, a simple word frequency analysis (a common tool of political scientist) of the United States Constitution reveals that the drafters and subsequent amenders were not very interested in the concept of citizenship beyond the right to vote. The term appears in the Constitution (including amendments) a grand total of of nine times. Five instances are in relation to the federal and state privileges and immunities clauses (more on that in a moment) and the other four times relate to voting rights or apportionment of representatives.
Second, the Constitution is not a positive rights document. Meaning the rights are not granted to citizens... the First Amendment does not say "you have the right to say whatever", it says (paraphrasing) "the government does not have the right to stop you from saying whatever." Our Constitution is a negative rights document, by which power is taken away from the government, not granted to the people. You can read through nearly every clause and you'll find they are all phrased as "the government can or cannot do X". So going back to the first point, when we talk about "privileges and immunities", there really aren't any constitutional privileges or immunities beyond the right to vote, most are defined by statute.
So, let's take a look at the language of the Constitution that relates to Habeas Corpus:
Finally, conservatives have been increasingly pushing this notion of citizenship. It is part of the dialog surrounding immigration rights and so called "illegals." The concept of citizenship infers a right to be here, and all others walk a fine line... heaven help you if you upset us, or we will deport you in a flash. The next step in that project seems to be to redefine the what it means to be a citizen. As I already demonstrated, the Constitution is primarily concerned with the right to vote... but now we see state legislation stripping illegal immigrants of their right to access social benefits, deny access to state colleges, even attempts to discriminate against their children. Some have gone so far as to propose altering the Constitution such that being born in the United States is not enough to establish citizenship.
So far these efforts are targeted at those who come to the States illegally... but it seems only a matter of time before the citizenship discourse gets to the point where we turn a suspicious eye to the legal immigrants who are not citizens. What then? Will John McCain declare that the First Amendment only applies to citizens?
Republicans in Congress, in particular Senators who have enough personal clout to actually matter, have declared they will do whatever it takes to undo this "harmful" decision. John McCain and Lindsay Graham have both spoken of legislative efforts to narrow the scope of the decision. This, in of itself, is fine. In fact, it's what is supposed to happen. The political branches make a law, the Court review the law with facts, rules whether it passes Constitutional muster, and if it doesn't, the political branches go and give it another try. The problem is when these Senators craft their words as combative... that they will fight for the little guy to see justice done in the face of an evil, overbearing Supreme Court. It makes it sound as if the Senators are white knights out to rectify deep wrongs inflicted upon the helpless, regardless of the consequences. Passing over the obvious fact that it is the Courts, not the Congress, that is trying to grant some small level of humanity to the helpless, this sort of dialog only serves to tarnish the view of the Court in the public eye. The long term consequences of that tarnishing is no worse that the presidential reputation destroying effects of the last eight years of the Bush Administration. The Courts are our courts, and when we tear them down, we do ourselves no service.
This, however, is just a minor quibble... my real objection is to the language used to vilify not the Court itself, but the decision they rendered. Here is a typical example from John McCain, "[the detainees] are not citizens, they do not have the rights of citizens." This is a true statement. The detainees are not citizens, and ergo do not have the rights of citizenship. So what?
Implicit in Sen. McCain's language is that the rights granted by the Constitution are to be enjoyed by citizens, and citizens alone. Three interesting observations emerge from the language.
First, a simple word frequency analysis (a common tool of political scientist) of the United States Constitution reveals that the drafters and subsequent amenders were not very interested in the concept of citizenship beyond the right to vote. The term appears in the Constitution (including amendments) a grand total of of nine times. Five instances are in relation to the federal and state privileges and immunities clauses (more on that in a moment) and the other four times relate to voting rights or apportionment of representatives.
Second, the Constitution is not a positive rights document. Meaning the rights are not granted to citizens... the First Amendment does not say "you have the right to say whatever", it says (paraphrasing) "the government does not have the right to stop you from saying whatever." Our Constitution is a negative rights document, by which power is taken away from the government, not granted to the people. You can read through nearly every clause and you'll find they are all phrased as "the government can or cannot do X". So going back to the first point, when we talk about "privileges and immunities", there really aren't any constitutional privileges or immunities beyond the right to vote, most are defined by statute.
So, let's take a look at the language of the Constitution that relates to Habeas Corpus:
The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.And here we find yet another negative right... "shall not be suspended." The clause is found in Section 8 of Article I, which is a big list of the things Congress is forbidden from doing. In other words, Congress may not suspend Habeas Corpus, except under specific circumstances (which the court, in other cases stemming from the Civil War, has made clear cannot be a case-by-case basis... either the writ is entirely suspended for everyone, or it is not). Note there is no mention of citizenship, simply that the Congress may not suspend. I admit I'm glossing over some interesting bits of Federal Con Law here... like could the Congress abolish the writ altogether forever? Many suggest that the Congress could do that, but that's different from denying the writ to just a subset of the population.
Finally, conservatives have been increasingly pushing this notion of citizenship. It is part of the dialog surrounding immigration rights and so called "illegals." The concept of citizenship infers a right to be here, and all others walk a fine line... heaven help you if you upset us, or we will deport you in a flash. The next step in that project seems to be to redefine the what it means to be a citizen. As I already demonstrated, the Constitution is primarily concerned with the right to vote... but now we see state legislation stripping illegal immigrants of their right to access social benefits, deny access to state colleges, even attempts to discriminate against their children. Some have gone so far as to propose altering the Constitution such that being born in the United States is not enough to establish citizenship.
So far these efforts are targeted at those who come to the States illegally... but it seems only a matter of time before the citizenship discourse gets to the point where we turn a suspicious eye to the legal immigrants who are not citizens. What then? Will John McCain declare that the First Amendment only applies to citizens?
Monday, June 02, 2008
Google vs. Privately Owned Community
This isn't really a story about Google, but I was tipped off by a tech-legal blogger about the story because of Google's involvement with the St. Paul suburb of North Oaks, Minnesota. The basic story boils down to (1) North Oaks residents actually own the roads in their town and have a trespassing ordinance, (2) Google violated that ordinance when it took photos of the town for its Street View program, (3) North Oaks city council requested the photos of the entire city be removed, (4) Google complied.
From a Public Relations standpoint, I have no argument with Google's decision... however, I do think there is a dangerous first amendment precedent waiting in the wings here. In Marsh v. Alabama the U.S. Supreme Court ruled that First Amendment activity was still protected in the town of Chickasaw, Alabama even though every square inch of the town was private property owned by the Gulf Shipbuilding Corporation. The company had baned religious leafleting and the Court said the company was the State in that situation and thus must abide by the First Amendment.
I think the situation in Chickasaw, Alabama is analogues to North Oaks, Minnesota... except, instead of a for-profit company owning the streets, individuals bound by their deeds through the North Oaks Home Owners Association own the streets. But the situation is otherwise the same in that a private entity is attempting to get around the State Action doctrine by abolishing the State. But in so doing, they create a new State in all but name, and thus under Marsh must allow First Amendment activities. There remains the question of whether taking photos from streets is a First Amendment activity, a question I am not immediately familiar with, although I believe it is protected.
Either way, I imagine Google complied for the same reason it complies with requests from private citizens... it doesn't have to under the law, but it does out of respect for privacy. My question now is what happens if a "citizen" of North Oaks, Minnesota writes to Google saying they wish to opt back into Street View?
From a Public Relations standpoint, I have no argument with Google's decision... however, I do think there is a dangerous first amendment precedent waiting in the wings here. In Marsh v. Alabama the U.S. Supreme Court ruled that First Amendment activity was still protected in the town of Chickasaw, Alabama even though every square inch of the town was private property owned by the Gulf Shipbuilding Corporation. The company had baned religious leafleting and the Court said the company was the State in that situation and thus must abide by the First Amendment.
I think the situation in Chickasaw, Alabama is analogues to North Oaks, Minnesota... except, instead of a for-profit company owning the streets, individuals bound by their deeds through the North Oaks Home Owners Association own the streets. But the situation is otherwise the same in that a private entity is attempting to get around the State Action doctrine by abolishing the State. But in so doing, they create a new State in all but name, and thus under Marsh must allow First Amendment activities. There remains the question of whether taking photos from streets is a First Amendment activity, a question I am not immediately familiar with, although I believe it is protected.
Either way, I imagine Google complied for the same reason it complies with requests from private citizens... it doesn't have to under the law, but it does out of respect for privacy. My question now is what happens if a "citizen" of North Oaks, Minnesota writes to Google saying they wish to opt back into Street View?
Wednesday, December 05, 2007
The Court & The Public
In the past week I have read no fewer than three different editorials about the need for the Supreme Court to allow cameras into oral arguments, or at a minimum release same day tapes of the proceedings. Most recently I read this anemic editorial by the Washington Post. The outcry is the same... people deserve the right to see the proceedings of the court because it's a public institution. I couldn't agree more with the objective, transparency of public institutions is paramount to good decision making... even courts, who are the least participatory of our political institutions.
Where these critics go wrong is in thinking that cameras make a difference... or that oral arguments are someone the "functioning" of the court. The events leading up to a legal decision are a complex web of filings and briefs, of which oral arguments is but one tiny piece. Lawyers generally agree that cases are won and lost on the brief... oral argument is just an chance to run through the briefs and address questions raised by the justices. But it's not like the questions are unexpected and no Supreme Court practitioner worth their salt leaves an unanswered question in hopes the topic comes up during orals. It's all there, in the brief, which are publicly available.
Yet, this isn't even the most amazing part about how incredibly transparent our legal process really is. Consider for a moment the House of Representatives. On a given day the 425 members cast votes on a number of different issues. Now imagine if each of those members had to write down why they voted the way the did, had to cite previous votes by themselves and those who held the seat before them as justification, and had to provide a detailed step-by-step analysis of their thinking. Wouldn't that be something? If the members of Congress had to publicly justify every single one of their votes! How would constituents feel if their member wrote they voted for a particular provision because they got a fat donation check!
Of course, House members don't have to justify their votes... nor do Senators... nor do Presidents (except in the case of a Veto, which is a whole other can of worms). Two out of three branches of government may exercise their constitution powers without a single word of explanation and routinely do so. The Court, in shocking contrast, explains everything. Complete with citations, justifications, historical narratives, transcripts, finds of fact, depositions, and the decisions of the District and Appellate Court from which the appeal originated. It's an overwhelming amount of information and quite frankly more transparency than your average Joe is really interested in. But, it's the law, and the law isn't easy... the law is complex, and no matter how simplistic campaigns may make governing seem, we should never allow the law to become a sound-byte.
So why then fixate on oral arguments? It is but one small (some might argue insignificant) part of the process. When a whole world of records is available to analyze, why are we getting all worked up over this? Lawyers, who have the most to gain from a transparent court, have never demanded it... so why suddenly is everyone else?
I don't have an answer, but I fear it's part of a larger trend to treat the court (federal or state, doesn't seem to matter) as just another political body, whose officials should be subject to the whim of the electorate and the twenty-four hour media machine. It's a bad trend that strikes a blow at yet another of our critical institutions designed to protect the minority from the tyranny of the majority. What I do know is that someday I want to attend an oral argument, not for the knowledge, but for the singular experience. If I ever want to know what actually happened in a case, I'll crack open a book.
Where these critics go wrong is in thinking that cameras make a difference... or that oral arguments are someone the "functioning" of the court. The events leading up to a legal decision are a complex web of filings and briefs, of which oral arguments is but one tiny piece. Lawyers generally agree that cases are won and lost on the brief... oral argument is just an chance to run through the briefs and address questions raised by the justices. But it's not like the questions are unexpected and no Supreme Court practitioner worth their salt leaves an unanswered question in hopes the topic comes up during orals. It's all there, in the brief, which are publicly available.
Yet, this isn't even the most amazing part about how incredibly transparent our legal process really is. Consider for a moment the House of Representatives. On a given day the 425 members cast votes on a number of different issues. Now imagine if each of those members had to write down why they voted the way the did, had to cite previous votes by themselves and those who held the seat before them as justification, and had to provide a detailed step-by-step analysis of their thinking. Wouldn't that be something? If the members of Congress had to publicly justify every single one of their votes! How would constituents feel if their member wrote they voted for a particular provision because they got a fat donation check!
Of course, House members don't have to justify their votes... nor do Senators... nor do Presidents (except in the case of a Veto, which is a whole other can of worms). Two out of three branches of government may exercise their constitution powers without a single word of explanation and routinely do so. The Court, in shocking contrast, explains everything. Complete with citations, justifications, historical narratives, transcripts, finds of fact, depositions, and the decisions of the District and Appellate Court from which the appeal originated. It's an overwhelming amount of information and quite frankly more transparency than your average Joe is really interested in. But, it's the law, and the law isn't easy... the law is complex, and no matter how simplistic campaigns may make governing seem, we should never allow the law to become a sound-byte.
So why then fixate on oral arguments? It is but one small (some might argue insignificant) part of the process. When a whole world of records is available to analyze, why are we getting all worked up over this? Lawyers, who have the most to gain from a transparent court, have never demanded it... so why suddenly is everyone else?
I don't have an answer, but I fear it's part of a larger trend to treat the court (federal or state, doesn't seem to matter) as just another political body, whose officials should be subject to the whim of the electorate and the twenty-four hour media machine. It's a bad trend that strikes a blow at yet another of our critical institutions designed to protect the minority from the tyranny of the majority. What I do know is that someday I want to attend an oral argument, not for the knowledge, but for the singular experience. If I ever want to know what actually happened in a case, I'll crack open a book.
Friday, August 03, 2007
Stupid Federal Appeals Court...
It's been months, months, since I last blogged, which is really a shame because there are so many interesting things I could have blogged about. Supreme Court rulings, 2008 Presidential Primary shenanigans, new web projects, plans to move, looking at new cars, etc, etc. And yet, for whatever reason, I didn't "pick up my pen" and it is my loss.
But today I read something that really makes my blood boil, so I'm back at the keyboard ready to take a stand. Feel free to read my primary source first, but if don't have the time, here's the summary. Pharmaceutical companies hold patents on drugs that give them sole authority over who gets to manufacture the drug. As a general rule, they elect to only allow themselves to make the drug, which means they have zero competition and without competition they can set whatever prices they want. Most non U.S. countries combat this by regulating the price of drugs, the result is in the United States drug costs are quite a bit higher than any where else in the world.
So, the District of Columbia, in their own effort to combat what they see as excessive prices, adopted a city ordinance that allows for a civil suit if the cost of a patented drug is 30% higher than in Canada, Germany, Australia or the United Kingdom. On appeal to the Federal Circuit Court of Appeals--my least favorite court for a number of reasons I've previously blogged about--deemed this to be in violation of the patent laws and an illegal usurpation of federal power.
I say fooey to that. But D.C. Council member David A. Catania has a more nuanced responce.
As is well documented, on the topic of patent law interpretation (as opposed to patent application) the Federal Circuit has a very poor record. If the Supreme Court accepts cert, and I pray they do, you can bet the farm they will overturn as they have nearly everytime the Federal Circuit has claimed its specialized area of law trumps all others.
When will Congress realize that giving an appeals court exclusive jurisdiction over a single area of law while denying them any jurisdiction over other areas ensures that the exclusive area will become paramount in all matters? Laws must be balanced with consideration to the competing interests and a specialized court like the Fed Circuit is tantamount to pressing down on one side of the scales.
But today I read something that really makes my blood boil, so I'm back at the keyboard ready to take a stand. Feel free to read my primary source first, but if don't have the time, here's the summary. Pharmaceutical companies hold patents on drugs that give them sole authority over who gets to manufacture the drug. As a general rule, they elect to only allow themselves to make the drug, which means they have zero competition and without competition they can set whatever prices they want. Most non U.S. countries combat this by regulating the price of drugs, the result is in the United States drug costs are quite a bit higher than any where else in the world.
So, the District of Columbia, in their own effort to combat what they see as excessive prices, adopted a city ordinance that allows for a civil suit if the cost of a patented drug is 30% higher than in Canada, Germany, Australia or the United Kingdom. On appeal to the Federal Circuit Court of Appeals--my least favorite court for a number of reasons I've previously blogged about--deemed this to be in violation of the patent laws and an illegal usurpation of federal power.
I say fooey to that. But D.C. Council member David A. Catania has a more nuanced responce.
It implies that patents would ban any legislation that affects the ability of patent holders to charge whatever they please, which is absurd. The Supreme Court has already upheld legislation that mandates price discounts to participate in Medicaid formularies. And no one has argued that states cannot enforce antitrust and other rules that limit monopoly prices of drugs indirectly -- although the full logical thrust of the opinion would do just that.I tend to agree. Patents only authorize the patent holder to control manufacture and use, it does not convey absolute pricing control, although absent regulation it is the natural result of a patent. But if this court ruling is correct, it means that if I obtain a patent on gun, which a state later decides to ban, or at least regulate, for safety reasons, the state would be in violation of the Patent Act and unable to do so. Essentially, anything patented is beyond state regulation! (The Congress, I presume, can still regulate under the ruling since they have the authority to trump the Patent Act.)
As is well documented, on the topic of patent law interpretation (as opposed to patent application) the Federal Circuit has a very poor record. If the Supreme Court accepts cert, and I pray they do, you can bet the farm they will overturn as they have nearly everytime the Federal Circuit has claimed its specialized area of law trumps all others.
When will Congress realize that giving an appeals court exclusive jurisdiction over a single area of law while denying them any jurisdiction over other areas ensures that the exclusive area will become paramount in all matters? Laws must be balanced with consideration to the competing interests and a specialized court like the Fed Circuit is tantamount to pressing down on one side of the scales.
Monday, April 09, 2007
The California Lawyers Say It's So...
Today, in the mail, I received two very important letters.
The first informed me that a settlement has been reached in the case of Rodriguez, et al. v. West Publishing Corp., d/b/a BAR/BRI, and Kaplan, Inc. For those following along at home, I'm "et al." Turns out BAR/BRI has been engaged in a little anti-trust no no resulting in a class action. And since no class is sufficiently classy without me, I was asked to tag along. There is $47 million in an escrow account which the lawyers get first crack at (to all you class action nay-sayers... those lawyers are welcome to their share in my opinion. I didn't have to lift a finger, will be getting some money back, and BAR/BRI is going to stop the antitrust behavior. Not a bad outcome for such an "inefficient" system). Then us plaintiffs get our share of the remainder, pro rated, based on the fee we paid. The pool includes all BAR/BRI customers in all states from 1997 - 2006, but since California's bar is one of the most expensive and the fee increased each year, my pro rata should be exceptionally pro, if you know what I mean. The award can be as much as 30% of my fee... which would be nearly $1000.
The other letter, this one from a different group of lawyers, wrote to tell me I am a moral person. It's strange to get a letter from lawyers saying, "yes good sir, you are moral enough to be one of us," but there it is. I posted it on my refrigerator with my new shiny UW Alumni Magnet (it says I'm an Alumni by the power vested in the UW Alumni Board of Trustees... what power do you suppose that could be? The power to ask for money on a bimonthly basis?)
So, that completes the final hurdle to becoming a licensed lawyer in the State of California: Ethics Bar, check; Bar Exam, check; moral character evaluation, check; ridiculous application fee, check. The only thing left is for the Supreme Court to complete the paperwork and send me a form asking for dues. That's right, my very first act as a licensed lawyer will be to pay yet more dues.
Now if only I had one of those fancy law jobs so I could afford to pay 'em. I suppose I do have that settlement money coming...
The first informed me that a settlement has been reached in the case of Rodriguez, et al. v. West Publishing Corp., d/b/a BAR/BRI, and Kaplan, Inc. For those following along at home, I'm "et al." Turns out BAR/BRI has been engaged in a little anti-trust no no resulting in a class action. And since no class is sufficiently classy without me, I was asked to tag along. There is $47 million in an escrow account which the lawyers get first crack at (to all you class action nay-sayers... those lawyers are welcome to their share in my opinion. I didn't have to lift a finger, will be getting some money back, and BAR/BRI is going to stop the antitrust behavior. Not a bad outcome for such an "inefficient" system). Then us plaintiffs get our share of the remainder, pro rated, based on the fee we paid. The pool includes all BAR/BRI customers in all states from 1997 - 2006, but since California's bar is one of the most expensive and the fee increased each year, my pro rata should be exceptionally pro, if you know what I mean. The award can be as much as 30% of my fee... which would be nearly $1000.
The other letter, this one from a different group of lawyers, wrote to tell me I am a moral person. It's strange to get a letter from lawyers saying, "yes good sir, you are moral enough to be one of us," but there it is. I posted it on my refrigerator with my new shiny UW Alumni Magnet (it says I'm an Alumni by the power vested in the UW Alumni Board of Trustees... what power do you suppose that could be? The power to ask for money on a bimonthly basis?)
So, that completes the final hurdle to becoming a licensed lawyer in the State of California: Ethics Bar, check; Bar Exam, check; moral character evaluation, check; ridiculous application fee, check. The only thing left is for the Supreme Court to complete the paperwork and send me a form asking for dues. That's right, my very first act as a licensed lawyer will be to pay yet more dues.
Now if only I had one of those fancy law jobs so I could afford to pay 'em. I suppose I do have that settlement money coming...
Thursday, March 22, 2007
Giving The District a Vote
The Washington Post reports today that efforts to grant the District of Columbia an actual, factual, vote in the House of Representatives was derailed by a poisin pill amendment, offered by Rep. Lamar Smith (R-Tex.), overriding the District's strict anti-gun laws. Very clever on the Republican's part in one of two ways. Either it puts Democrats from conservative districts in a tough spot (voting against gun freedom), or, it forces the Democratic Leadership to bring the bill up for consideration under a closed rule, thus reversing on a pledge to run the House in a more open manner.
House procedural maneuvering aside, none of this may matter as the President has said he will veto the bill should it reach his desk. He, or at least his advisors, believe the law is unconstitutional. The first clause of Article I, Section 2 of the Constution reads:
Of course, the Democrats have their own legal argument. They point to Article I, Section 8, Clause 17 (the Enclave Clause), which says:
Unfortunately, I have to side with the Republicans on this one, at least as far as the legal argument goes. There are two problems with using the enclave clause. First, it makes no meaningful distinction between the District of Columbia and military bases. Both are governed under the same clause and Congress may legislate with equal force. Which means if the District can be granted representation under the enclave clause then so can all of the military bases around the country.
Second, and for me more powerful, is the 23rd Amendment, which grants the District representation in the electoral college as if it were a state (with the minor provision that they can never get more votes than the smallest state, so they are pretty much stuck at three votes). If the Democrats were right about the enclave clause, this amendment would never have been necessary, Congress could have simply granted the District electoral representation by legislative action. Instead they went to all the trouble of assembling 2/3rds of the House and the Senate and a majority in 3/4ths of all the state legislatures.
Given this precedence, it is hard to argue that legislation, even if well intended, can alter the voting rights clearly outlined by the Constition. There have been efforts to grant the District either statehood or full voting rights under another constitutional amendment akin to the 23rd. The statehood route poses many complications (for example, could the new state pass a law ousting the national government?) and is not really consistent with the founders vision of a national capital free from state intervention. The full voting rights option, on the other hand, is pretty straightforward. The key obstacle is history--it's been tried before and failed--and partisan positioning--Republicans won't vote to grant representation to a Democratic stronghold unless they get the same in return.
But perhaps both can be overcome is sufficient political will. If the voting rights folks can frame the issue correctly, show how the Republicans are preventing a giant city from participating in self-governance, focus on representation in the House by dropping the demand for Senators, and then really push the issue when it goes out into the states, then maybe they have a chance. As for the current effort, I sincerely doubt it.
House procedural maneuvering aside, none of this may matter as the President has said he will veto the bill should it reach his desk. He, or at least his advisors, believe the law is unconstitutional. The first clause of Article I, Section 2 of the Constution reads:
The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.Which supports the President's claim... states get representatives, not districts. It's worth noting that the President also stated the the McCain-Feingold Bipartisan Campaign Finance Reform Act was unconstitutional, and yet is bears his signature.
Of course, the Democrats have their own legal argument. They point to Article I, Section 8, Clause 17 (the Enclave Clause), which says:
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful BuildingsThis clause has been read to mean the Congress can do pretty much whatever it wants within the confines of the District (makes me a little sad for the residents of DC... would you want Congress to effectively be your city council and state legislature all at the same time?).
Unfortunately, I have to side with the Republicans on this one, at least as far as the legal argument goes. There are two problems with using the enclave clause. First, it makes no meaningful distinction between the District of Columbia and military bases. Both are governed under the same clause and Congress may legislate with equal force. Which means if the District can be granted representation under the enclave clause then so can all of the military bases around the country.
Second, and for me more powerful, is the 23rd Amendment, which grants the District representation in the electoral college as if it were a state (with the minor provision that they can never get more votes than the smallest state, so they are pretty much stuck at three votes). If the Democrats were right about the enclave clause, this amendment would never have been necessary, Congress could have simply granted the District electoral representation by legislative action. Instead they went to all the trouble of assembling 2/3rds of the House and the Senate and a majority in 3/4ths of all the state legislatures.
Given this precedence, it is hard to argue that legislation, even if well intended, can alter the voting rights clearly outlined by the Constition. There have been efforts to grant the District either statehood or full voting rights under another constitutional amendment akin to the 23rd. The statehood route poses many complications (for example, could the new state pass a law ousting the national government?) and is not really consistent with the founders vision of a national capital free from state intervention. The full voting rights option, on the other hand, is pretty straightforward. The key obstacle is history--it's been tried before and failed--and partisan positioning--Republicans won't vote to grant representation to a Democratic stronghold unless they get the same in return.
But perhaps both can be overcome is sufficient political will. If the voting rights folks can frame the issue correctly, show how the Republicans are preventing a giant city from participating in self-governance, focus on representation in the House by dropping the demand for Senators, and then really push the issue when it goes out into the states, then maybe they have a chance. As for the current effort, I sincerely doubt it.
Friday, March 09, 2007
Seeking Special Protection
We all know about Arthur Anderson, the big accounting firm that went down with Enron in 2002. Suddenly we went from having "The Big Five" accounting firms to "The Big Four." See, the Federal Securities & Exchange Commission (SEC) imposes pretty significant reporting requirements on any publically traded firms. Both before and after the adoption of Sarbanse-Oxly, many of these reporting requirements can only be fulfilled by an outside accounting firm. The large companies rely exclusively on the Big Four to fullfill their outside auditing needs.
But, did you know that before there was The Big Five there was The Big Eight? Presumably there was also the Big 12 and the Not Quite as Big 17. The accounting business, like so many businesses, have been seeking efficiency through mergers since the 70's. Taking smaller companies and merging them into successively larger companies. So imagine my surprise when I read in the Washington Post today that these same companies are seeking legislative protection from liability because, and I quote, "We just don't want to be put out of business."
There tactic here is classic. Since they provide such a valuable and necessary service, they will argue that it is better, for society as a whole, if they are essentially immune from suit so as to ensure the few of them that remain continue to function. It would be worse, they will say, for there to be only three or two firms than for one of them to engage in fraud and get off the hook. It's the same argument the airlines make when they get huge federal bailouts.
The critical difference between airlines and accounting firms is that there is only so much market capacity for airlines. Given the huge capital resources needed to run airlines, terminals, ticketing, etc, it is safe to conclude that there is an optimal number of airlines and that it is a relatively small number. But the accounting firms only real capital cost is in brain power. The more clients they have, the more brains they need to employ. My guess is the whole thing scales rather well... which is why they merged together in the first place. If there is no lost efficiency from merging two firms, both with 50 employees into a single firm with 100 employees (maybe less), then you're going to do it on the grounds of eliminating competition. It's a no brainer (excuse the pun).
I consider this classic short term profit driven thinking. One of the central principles of computing, especially network computing, is to reduce the number of single points of failure. You never want a system to rely on one part which, should it fail, the entire system will go down. The same principle applies to civilization. You don't want everyone employed in the same job, you don't want your food source to be in one location, you don't want all your energy to come from the same kind of fuel. The more you diversify the better prepared we are for unforeseen, yet inevitable, changes in circumstances. It's the same principle behind a diversified stock portfolio.
Yet everytime one of these accounting firms merged together, we got closer and closer to a single point of failure. Now the four firms are so huge and have such an iron grip on the market that it is near impossible for a new market entry. The public traded companies have no choice but to hire one of the Big Four, and thus no medium sized accounting firm can ever become Big #5. Now the possibility of a bankruptcy due to a civil lawsuit is a big deal... the investment system needs these firms to survive, regardless of the cost.
Which brings me the final thought of who, exactly, bears these costs? See, when there is fraud, and that fraud is aided by an accounting firm, the investors have civil recourse to recover lost funds. When a company goes bankrupt, like Enron did, there's not a lot of money available to make those investors whole. To be clear, "investor" should conjure up both thoughts of already rich billions as well as the middle class saving for their kid's college and industrial workers pensions (the stock market, it's not just for elite any more!). If the purpose of the civil justice system is to make those damaged whole again, then going after an accounting firm who helped perpetrate the fraud just makes sense. If the SEC, or Congress, goes along with the Big Four's wishes, don't think those unrecoverable damages just go away. Instead, all those damages felt by the collapse of a public company will be carried by investors, while the accountants who both aided and likely benefited by the fraud, will continue to operate without any punishment or financial loss. Talk about a single point of failure.
But, did you know that before there was The Big Five there was The Big Eight? Presumably there was also the Big 12 and the Not Quite as Big 17. The accounting business, like so many businesses, have been seeking efficiency through mergers since the 70's. Taking smaller companies and merging them into successively larger companies. So imagine my surprise when I read in the Washington Post today that these same companies are seeking legislative protection from liability because, and I quote, "We just don't want to be put out of business."
There tactic here is classic. Since they provide such a valuable and necessary service, they will argue that it is better, for society as a whole, if they are essentially immune from suit so as to ensure the few of them that remain continue to function. It would be worse, they will say, for there to be only three or two firms than for one of them to engage in fraud and get off the hook. It's the same argument the airlines make when they get huge federal bailouts.
The critical difference between airlines and accounting firms is that there is only so much market capacity for airlines. Given the huge capital resources needed to run airlines, terminals, ticketing, etc, it is safe to conclude that there is an optimal number of airlines and that it is a relatively small number. But the accounting firms only real capital cost is in brain power. The more clients they have, the more brains they need to employ. My guess is the whole thing scales rather well... which is why they merged together in the first place. If there is no lost efficiency from merging two firms, both with 50 employees into a single firm with 100 employees (maybe less), then you're going to do it on the grounds of eliminating competition. It's a no brainer (excuse the pun).
I consider this classic short term profit driven thinking. One of the central principles of computing, especially network computing, is to reduce the number of single points of failure. You never want a system to rely on one part which, should it fail, the entire system will go down. The same principle applies to civilization. You don't want everyone employed in the same job, you don't want your food source to be in one location, you don't want all your energy to come from the same kind of fuel. The more you diversify the better prepared we are for unforeseen, yet inevitable, changes in circumstances. It's the same principle behind a diversified stock portfolio.
Yet everytime one of these accounting firms merged together, we got closer and closer to a single point of failure. Now the four firms are so huge and have such an iron grip on the market that it is near impossible for a new market entry. The public traded companies have no choice but to hire one of the Big Four, and thus no medium sized accounting firm can ever become Big #5. Now the possibility of a bankruptcy due to a civil lawsuit is a big deal... the investment system needs these firms to survive, regardless of the cost.
Which brings me the final thought of who, exactly, bears these costs? See, when there is fraud, and that fraud is aided by an accounting firm, the investors have civil recourse to recover lost funds. When a company goes bankrupt, like Enron did, there's not a lot of money available to make those investors whole. To be clear, "investor" should conjure up both thoughts of already rich billions as well as the middle class saving for their kid's college and industrial workers pensions (the stock market, it's not just for elite any more!). If the purpose of the civil justice system is to make those damaged whole again, then going after an accounting firm who helped perpetrate the fraud just makes sense. If the SEC, or Congress, goes along with the Big Four's wishes, don't think those unrecoverable damages just go away. Instead, all those damages felt by the collapse of a public company will be carried by investors, while the accountants who both aided and likely benefited by the fraud, will continue to operate without any punishment or financial loss. Talk about a single point of failure.
Tuesday, February 27, 2007
Supreme Court Docket Watch
The decision to grant or deny Supreme Court review has been made in two important cases, one involving the Washington State primary and the other involving criminal sentencing. I've blogged about the Washington State primary system before, my belief that the state parties are shooting themselves in the foot, and that the courts holdings so far have been rather inflexible given the political nature of the question.
Well, now we are going to get the Supreme Court's opinion on whether the top-two system is constitutional or not. Louisiana has been using the system for years, so they better be on the lookout... remember, it was California, who adopted Washington's previous system, that went to the Supreme Court last time. If Washington loses like California lost, a national precedent will have been set.
Legal mumbo-jumbo aside, I have to wonder what the courts are doing with all of this? If the blanket primary is unconstitutional, and the top-two is unconstitutional, it begins to seem as if the Constitution has a preferred sort of primary, even though the constitution makes no mention of a primary and the founders, through Federalist 10, make clear that factions--only possible through primaries--are to be avoided. Personally, I found the District Court and 9th Circuit court opinions on the top-two system to be less than convincing. Their holding boils down to relying on the earlier blanket primary holding in California Democratic Party vs. Jones, concluding that anything which diminishes a political party's right to "speak" by selecting a candidate is unconstitutional.
Given that free speech is generally a balancing test, I don't think the courts really gave the question the appropriate scrutiny it deserves. The whole idea behind the top-two system is to say the parties don't get to decide who appears on the general ballot. They can use whatever system they want to pick who gets to use the party political apparatus, but such authority does not extend to deciding who gets to run for office. Put another way, it's not limiting the party's right to speak, it's saying the state isn't going to listen.
The other case, involving a 200 year sentence for a man found with 20 pictures of child pornography on this computer, was denied review. The case sought to question whether such a long sentences (10 years for each photo), served consecutively (instead of concurrently, as most jurisdictions would do) violated the ban against cruel and unusual punishment. The state court review only asked whether the 10 years per photo was fair, and having decided in the affirmative, it did not question the state's decision to apply the sentence consecutively.
What's interesting about this case to me is the quote in the article from a Professor Berman.
For me, the critical distinction here revolves around state decision making. In the case of punitive damages, the decisions are made by juries within the context of judge made common law. Which gives the Supreme Court a critical role in forming, and revising, those precedents. The criminal punishment, on the other hand, is not by common law. Because of the due process clause of the Constitution (5th or 14th Amendment, take your pick), all crimes, and their punishments, must be the product of the legislature. Which means Arizona's decision to impose consecutive terms, instead of concurrent terms, was made by the state legislature. If the result is seen as excessive, then the political process is the proper route for change.
Well, now we are going to get the Supreme Court's opinion on whether the top-two system is constitutional or not. Louisiana has been using the system for years, so they better be on the lookout... remember, it was California, who adopted Washington's previous system, that went to the Supreme Court last time. If Washington loses like California lost, a national precedent will have been set.
Legal mumbo-jumbo aside, I have to wonder what the courts are doing with all of this? If the blanket primary is unconstitutional, and the top-two is unconstitutional, it begins to seem as if the Constitution has a preferred sort of primary, even though the constitution makes no mention of a primary and the founders, through Federalist 10, make clear that factions--only possible through primaries--are to be avoided. Personally, I found the District Court and 9th Circuit court opinions on the top-two system to be less than convincing. Their holding boils down to relying on the earlier blanket primary holding in California Democratic Party vs. Jones, concluding that anything which diminishes a political party's right to "speak" by selecting a candidate is unconstitutional.
Given that free speech is generally a balancing test, I don't think the courts really gave the question the appropriate scrutiny it deserves. The whole idea behind the top-two system is to say the parties don't get to decide who appears on the general ballot. They can use whatever system they want to pick who gets to use the party political apparatus, but such authority does not extend to deciding who gets to run for office. Put another way, it's not limiting the party's right to speak, it's saying the state isn't going to listen.
The other case, involving a 200 year sentence for a man found with 20 pictures of child pornography on this computer, was denied review. The case sought to question whether such a long sentences (10 years for each photo), served consecutively (instead of concurrently, as most jurisdictions would do) violated the ban against cruel and unusual punishment. The state court review only asked whether the 10 years per photo was fair, and having decided in the affirmative, it did not question the state's decision to apply the sentence consecutively.
What's interesting about this case to me is the quote in the article from a Professor Berman.
For a host of good reasons, the justices think they have a role in regulating extreme corporate punishment, but I fear the court doesn’t embrace a role in regulating extreme individual punishment.He is referring to the court's decisions limiting punitive damages, such as the rough guideline that the punitive should never be more than nine times the actual damages.
For me, the critical distinction here revolves around state decision making. In the case of punitive damages, the decisions are made by juries within the context of judge made common law. Which gives the Supreme Court a critical role in forming, and revising, those precedents. The criminal punishment, on the other hand, is not by common law. Because of the due process clause of the Constitution (5th or 14th Amendment, take your pick), all crimes, and their punishments, must be the product of the legislature. Which means Arizona's decision to impose consecutive terms, instead of concurrent terms, was made by the state legislature. If the result is seen as excessive, then the political process is the proper route for change.
Tuesday, February 13, 2007
They Knew it Was Going to Be Easy
News from the hacker community... the digital rights management (DRM) technology that protects HD-DVD and Blu-Ray high definition video discs has been broken. That's really not news as it was an inevitability.
The Slashdot commentary on this was interesting and pointed out something I hadn't thought of before. I will refrain from quoting the whole comment and instead paraphrase: it is impossible to secure a message when the recipient and the attacker are the same person. And now you are asking, what does that mean?
Okay, quick cryptography lesson from someone who only understands the basic. Assume two people (Bob and Alice) who want to send communication between eachother privately. In order for this communication to occur they must use one of several encryption methodologies. In general, this is done by both Bob and Alice knowing a "secret" and using that secret to encrypt and decrypt the message. Now, a third person (Charles) wants to listen in, but can't because he doesn't know the secret. Works pretty well, for the most part.
Now with DRM, the paradigm is different. Alice (played by the record label or movie studio) wants to send a message to Bob (played by you and I) that he can only listen/watch in certain circumstances. But Bob also wants to watch his DVD in a non-authorized fashion (say, with a Linux box)... which means Bob has a dual identity. He is both Bob and Charles. Any secret Bob knows, Charles knows... and now the gig is up. It may be that Bob doesn't know what the secret is, exactly, that he knows, but it is only a matter of time before smart people figure it out. That's what happened with DVDs several years ago, and that's what happened with the next generation systems.
But this is not what I want to talk about. The title of this post is "They Knew it Was Going to Be Easy" because the makers of DRM knew everything I just said above. They are not, contrary to the opining of the Slashdot crowd, stupid. In fact, they knew this so well that they got a law passed to criminalize the activity... a little something known as the Digital Millennium Copyright Act. §1201(A) reads:
So yes, it is easy... but so is bopping someone on the nose. Doesn't take anything more than one of my fists and decent aim. Which is why we pass laws in the first place, to create artificial incentives which conform behavior in a particular manner as established by the legislative process (I love this link!). The media companies said they wanted to keep pirates from breaking into their stuff, they recognized it couldn't be done with technology alone, so they appealed to the legislature and got the needed protection.
Which is to say... they knew it was going to be easy.
The Slashdot commentary on this was interesting and pointed out something I hadn't thought of before. I will refrain from quoting the whole comment and instead paraphrase: it is impossible to secure a message when the recipient and the attacker are the same person. And now you are asking, what does that mean?
Okay, quick cryptography lesson from someone who only understands the basic. Assume two people (Bob and Alice) who want to send communication between eachother privately. In order for this communication to occur they must use one of several encryption methodologies. In general, this is done by both Bob and Alice knowing a "secret" and using that secret to encrypt and decrypt the message. Now, a third person (Charles) wants to listen in, but can't because he doesn't know the secret. Works pretty well, for the most part.
Now with DRM, the paradigm is different. Alice (played by the record label or movie studio) wants to send a message to Bob (played by you and I) that he can only listen/watch in certain circumstances. But Bob also wants to watch his DVD in a non-authorized fashion (say, with a Linux box)... which means Bob has a dual identity. He is both Bob and Charles. Any secret Bob knows, Charles knows... and now the gig is up. It may be that Bob doesn't know what the secret is, exactly, that he knows, but it is only a matter of time before smart people figure it out. That's what happened with DVDs several years ago, and that's what happened with the next generation systems.
But this is not what I want to talk about. The title of this post is "They Knew it Was Going to Be Easy" because the makers of DRM knew everything I just said above. They are not, contrary to the opining of the Slashdot crowd, stupid. In fact, they knew this so well that they got a law passed to criminalize the activity... a little something known as the Digital Millennium Copyright Act. §1201(A) reads:
No person shall circumvent a technological measure that effectively controls access to a work protected under this titleWhich makes the breaking of DRM a against the law... even if the DRM is really stupid.
So yes, it is easy... but so is bopping someone on the nose. Doesn't take anything more than one of my fists and decent aim. Which is why we pass laws in the first place, to create artificial incentives which conform behavior in a particular manner as established by the legislative process (I love this link!). The media companies said they wanted to keep pirates from breaking into their stuff, they recognized it couldn't be done with technology alone, so they appealed to the legislature and got the needed protection.
Which is to say... they knew it was going to be easy.
Monday, February 05, 2007
Copyrights in the News
I've got three different copyright stories, all within a 24 hour period. Clearly the world is beginning to take notice.
First up, the "creator" of the Electric Slide has issued a DMCA take down notice to YouTube for videos where the Electric Slide is being performed incorrectly. First, to silence all of those "the DMCA goes to far" folks (of which I am, arguably, one of... but not in this case), the DMCA is only involved here because YouTube has a chance to avoid contributory liability by taking down the material. The original poster of the material can then serve notice to YouTube that the material is not infringing, at which point YouTube must repost it. Then, YouTube having done its part, it's up to the two parties to resolve the issue. The real issue here is one of basic copyright law.
Which presents an interesting question: can dance moves be copyrighted? The expert from the CNet article (Jason Schultz of the EFF) seems to pass this question off as if it's a no-brainer. Just like a song, performing it without permission is a violation of the §106 of the Copyright Act. But I'm not convinced. To perform a dance I must follow a series of steps, also known as instructions. A series of instructions is generally referred to as a process... and processes, as a rule, are not copyrightable. They are not copyrightable because in this country we protect processes through the patent system. It's very easy to state the rule: "patent ideas, copyright expression." I could make the case that dance steps could be either, but by law it cannot be both.
That's not even the most interesting question... see, the videos he wants taken down show the dance performed incorrectly. Which means that if it were patented, he would have no action (except, maybe, for this thing called the Doctrine of Equivalents, and I don't want to talk about that). On the copyright front, there is no literal copying, so you get into a whole fair use thing. Not to mention, if the rights holder is saying "I grant a license to people to dance this correctly," is there an implied license to dance it incorrectly?!
Next story, from the Washington Post, the GW Hatchet ran a story a few days ago which was picked up by the local TV station. Who in turn did not bother to credit the paper. They argue the idea of the story cannot be protected, thus they have no responsibility to attribute, much less seek permission. But, the Post reports the story used direct quotes from the college paper... that is copyright infringement. But putting that aside, I think the legal obsession with copyright has gone too far. It's not a question of whether the paper is bound by law to attribute, but whether it was the right thing to do.
Lastly, Mikhail Gorbachev is appealing to Bill Gates to drop a criminal suit against a Russian school headmaster who is accused of using unlicensed copies of Windows in the school. Apparently former heads of state don't have a lot to do these days. But it raises two interesting points. First, why are we talking criminal charges? Who was harmed in a way that requires punishment beyond restitution? Make the school pay, remove the software, whatever... but jail? Second, Microsoft is in a great position now to push out a marketing and political win. It agrees to give the school the pirated software, free of charge, and lets the guy off the hook. Now you've got another school district locked into the Microsoft hegemony and they get to make nice with the Nobel Peace Prize winner. What I don't understand is why this issue is on Gorbachev's radar. Is this the beginning of a larger campaign for my humane copyright laws?
First up, the "creator" of the Electric Slide has issued a DMCA take down notice to YouTube for videos where the Electric Slide is being performed incorrectly. First, to silence all of those "the DMCA goes to far" folks (of which I am, arguably, one of... but not in this case), the DMCA is only involved here because YouTube has a chance to avoid contributory liability by taking down the material. The original poster of the material can then serve notice to YouTube that the material is not infringing, at which point YouTube must repost it. Then, YouTube having done its part, it's up to the two parties to resolve the issue. The real issue here is one of basic copyright law.
Which presents an interesting question: can dance moves be copyrighted? The expert from the CNet article (Jason Schultz of the EFF) seems to pass this question off as if it's a no-brainer. Just like a song, performing it without permission is a violation of the §106 of the Copyright Act. But I'm not convinced. To perform a dance I must follow a series of steps, also known as instructions. A series of instructions is generally referred to as a process... and processes, as a rule, are not copyrightable. They are not copyrightable because in this country we protect processes through the patent system. It's very easy to state the rule: "patent ideas, copyright expression." I could make the case that dance steps could be either, but by law it cannot be both.
That's not even the most interesting question... see, the videos he wants taken down show the dance performed incorrectly. Which means that if it were patented, he would have no action (except, maybe, for this thing called the Doctrine of Equivalents, and I don't want to talk about that). On the copyright front, there is no literal copying, so you get into a whole fair use thing. Not to mention, if the rights holder is saying "I grant a license to people to dance this correctly," is there an implied license to dance it incorrectly?!
Next story, from the Washington Post, the GW Hatchet ran a story a few days ago which was picked up by the local TV station. Who in turn did not bother to credit the paper. They argue the idea of the story cannot be protected, thus they have no responsibility to attribute, much less seek permission. But, the Post reports the story used direct quotes from the college paper... that is copyright infringement. But putting that aside, I think the legal obsession with copyright has gone too far. It's not a question of whether the paper is bound by law to attribute, but whether it was the right thing to do.
Lastly, Mikhail Gorbachev is appealing to Bill Gates to drop a criminal suit against a Russian school headmaster who is accused of using unlicensed copies of Windows in the school. Apparently former heads of state don't have a lot to do these days. But it raises two interesting points. First, why are we talking criminal charges? Who was harmed in a way that requires punishment beyond restitution? Make the school pay, remove the software, whatever... but jail? Second, Microsoft is in a great position now to push out a marketing and political win. It agrees to give the school the pirated software, free of charge, and lets the guy off the hook. Now you've got another school district locked into the Microsoft hegemony and they get to make nice with the Nobel Peace Prize winner. What I don't understand is why this issue is on Gorbachev's radar. Is this the beginning of a larger campaign for my humane copyright laws?
Friday, December 01, 2006
Quick Post on Standing and the First Amendment
Washington Post has an article on the Supreme Court's decision to hear a challenge to the Bush Administration's faith-based initiative program. There are a lot of opinions flying around about the faith-based thing, and I'm not really interested in getting into it (for discussions on religion, I suggest checking out my friends' discussions).
What I am interested in is the Administration's effort to get this case booted on procedural grounds. They argue the plaintifs in the case lack standing, which means the plaintifs have not personally suffered a harm. The plaintifs are suing as tax-payers, meaning the only harm they allege is that their tax dollars are being spent in an unconstitutional manner.
The administration is not wrong in that tax-payer suits are dangerous... to allow any old tax-payer to bring a suit would flood the courts with law suits while providing little context for the court to rule. See, the problem with the average tax-payer is that they have no specific facts, no information, nothing to bring to the table that a judge can consider. As such, we have a doctrine that says general tax-payer status does not count for standing.
The administration, however, is dead wrong when "[i]n written arguments filed with the Supreme Court, Solicitor General Paul Clement said the appeals court had transformed a narrow exception in law into a "roving license" for citizens to challenge any action of the executive branch of government." See the mention of the narrow exception? That's what is known as a bald face lie.
The narrow exception he's referring to, and the only exception I know of to the tax-payer standing doctrine, is for establishment of religion cases. The argument is simple... if the government is, in fact, using tax dollars for unconstitutional establishment of religion (as the plaintifs argue in this case), who exactly suffers a harm other than the general tax-payer? Who, without this exception, has standing to challenge? Certainly not the religious institution receiving the funding. If no one has standing, then the behavior continues without scrutiny.
Which, I suppose, is exactly what the Bush Administration wants in this instance.
What I am interested in is the Administration's effort to get this case booted on procedural grounds. They argue the plaintifs in the case lack standing, which means the plaintifs have not personally suffered a harm. The plaintifs are suing as tax-payers, meaning the only harm they allege is that their tax dollars are being spent in an unconstitutional manner.
The administration is not wrong in that tax-payer suits are dangerous... to allow any old tax-payer to bring a suit would flood the courts with law suits while providing little context for the court to rule. See, the problem with the average tax-payer is that they have no specific facts, no information, nothing to bring to the table that a judge can consider. As such, we have a doctrine that says general tax-payer status does not count for standing.
The administration, however, is dead wrong when "[i]n written arguments filed with the Supreme Court, Solicitor General Paul Clement said the appeals court had transformed a narrow exception in law into a "roving license" for citizens to challenge any action of the executive branch of government." See the mention of the narrow exception? That's what is known as a bald face lie.
The narrow exception he's referring to, and the only exception I know of to the tax-payer standing doctrine, is for establishment of religion cases. The argument is simple... if the government is, in fact, using tax dollars for unconstitutional establishment of religion (as the plaintifs argue in this case), who exactly suffers a harm other than the general tax-payer? Who, without this exception, has standing to challenge? Certainly not the religious institution receiving the funding. If no one has standing, then the behavior continues without scrutiny.
Which, I suppose, is exactly what the Bush Administration wants in this instance.
Wednesday, November 29, 2006
IP in the News
Two stories worth noting/commenting about and then it's back to work on my Kolab replacement technology... and maybe I'll try to find a job.
First up, the United States Supreme Court heard oral arguments today on a topic near and dear to my heart: obviousness. In order to receive a patent from the United States government an invention must pass a series of tests. They are generally conceived of as: utility, novelty, and nonobvious. At this point utility is pretty much a non-test, as everything has some utility. There used to be a doctrine about public good, but a famous case about those drink dispensers and how they trick you into thinking the juice is fresh (when, in fact, the juice you see is colored water in a continuous cycle) ended any need for public benefit.
Novelty is perhaps the hardest hurdle to cross, because any prior art can nullify your patent. Of course, there is no easy way to access prior art and because trade secret is such a big thing in the technology sector, a lot of prior art is never widely published.
Which leaves us with obviousness. Under the statute, a patent is not to be granted to an idea with someone of "ordinary skill" in the same field could have come up with it. The point being that just because you were first to come up with something anyone could have done does not mean you should have exclusive rights. However, the statute was pretty much eviscerated by the Federal Circuit when they observed that such inquiries have a "hindsight" problem. Essentially, when the court tries to consider the obviousness it does so in the context of the inventions existence. It's obvious because it's already be done. But the Federal Circuit wanted to know if it was obvious at the time of invention.
The Federal Circuit's test on this is odd and I'm not going to get into it because I don't really understand it. Justice Scalia is quoted to have declared it "gobbledygook" and "meaningless." Sounds about right. It's also worth noting that the Supreme Court usually reverses the Federal Circuit if it bothers to take the case, which means the test will likely be rejected and replaced with something better. Which is a good thing.
In the past I have argued the reversal rate reflected a fundamental disconnect between the Federal Circuit and the Judiciary itself. However, my Circuit Court research from last spring makes me doubt that claim. Unlike the regional circuit courts, which can split on the same question, the Federal Circuit holds sole initial appelate jurisdiction over patent claims. Thus there is no such thing as a circuit split in the area of patent law. I suggest this is a bad thing, as it leads to ossification and reduced experimentation, but the Federal Courts Improvement Act of 1982 disagrees with me on this point.
Much of what the Supreme Court does is pick winners in circuit splits, which means one circuit usually gets upheld and the other gets overturned. But in the Federal Circuit context, if the Justices agree with the the Fed Circuit, it's easier and quicker to simply deny cert. The only time they need to bother with a case is when they want to consider overturning a decision. Following the logic, we would expect the only time the Federal Circuit to be upheld is when four justices disagree (enough to grant cert) but can't find a fifth to form a majority. Since most patent decisions are 7-2 or better, we rarely see this situation.
In other news, the first report of a major university selling it's professor's fair use rights has emerged. Apparently Cornell University has entered into an agreement with Association of American Publishers (think RIAA for books) which will significantly constrain the ability for professors to distribute learning materials to students without paying a royalty. Now, I'm not going to say the issue isn't tricky, but this is no Napster situation. Professors are not stealing anything... they are teaching students. Considered by some to be the most noble of all professions.
The heart of the issues is §107 of the Copyright Act, which codifies fair use rights. The act has a four item list which are considered non-exclusive factors to be used in determining a fair use. Since it is a non-exclusive list, there are other factors, but these are the big four. The very first one reads
The publishers counter that they produce educational materials for the purpose of making a profit. If the very people who are supposed to be buying these products (teachers and students) can just get them for free, then there is no money to be had and it's time to get out of the business. Which is as good an argument as any.
Of course, for decades (if not centuries) professors would have books placed on reserve at the university library where students could access the book for free. Online reserve, which is at the heart of the agreement, is just a natural extension of the old concept, right?
The article first caught my attention because of the inflammatory headline: "Professors get 'F' in copyright protection knowledge." Which I thought was pretty extreme, given the difficult legal questions at issue. But the article redeemed itself way at the bottom when it recognized that not all matters are legal. Even if the publishers are 100% correct, they are essentially biting the hand that feeds them... the professors they are seeking to limit are the very professors who write the material in the first place. Here's the quote from the article.
First up, the United States Supreme Court heard oral arguments today on a topic near and dear to my heart: obviousness. In order to receive a patent from the United States government an invention must pass a series of tests. They are generally conceived of as: utility, novelty, and nonobvious. At this point utility is pretty much a non-test, as everything has some utility. There used to be a doctrine about public good, but a famous case about those drink dispensers and how they trick you into thinking the juice is fresh (when, in fact, the juice you see is colored water in a continuous cycle) ended any need for public benefit.
Novelty is perhaps the hardest hurdle to cross, because any prior art can nullify your patent. Of course, there is no easy way to access prior art and because trade secret is such a big thing in the technology sector, a lot of prior art is never widely published.
Which leaves us with obviousness. Under the statute, a patent is not to be granted to an idea with someone of "ordinary skill" in the same field could have come up with it. The point being that just because you were first to come up with something anyone could have done does not mean you should have exclusive rights. However, the statute was pretty much eviscerated by the Federal Circuit when they observed that such inquiries have a "hindsight" problem. Essentially, when the court tries to consider the obviousness it does so in the context of the inventions existence. It's obvious because it's already be done. But the Federal Circuit wanted to know if it was obvious at the time of invention.
The Federal Circuit's test on this is odd and I'm not going to get into it because I don't really understand it. Justice Scalia is quoted to have declared it "gobbledygook" and "meaningless." Sounds about right. It's also worth noting that the Supreme Court usually reverses the Federal Circuit if it bothers to take the case, which means the test will likely be rejected and replaced with something better. Which is a good thing.
In the past I have argued the reversal rate reflected a fundamental disconnect between the Federal Circuit and the Judiciary itself. However, my Circuit Court research from last spring makes me doubt that claim. Unlike the regional circuit courts, which can split on the same question, the Federal Circuit holds sole initial appelate jurisdiction over patent claims. Thus there is no such thing as a circuit split in the area of patent law. I suggest this is a bad thing, as it leads to ossification and reduced experimentation, but the Federal Courts Improvement Act of 1982 disagrees with me on this point.
Much of what the Supreme Court does is pick winners in circuit splits, which means one circuit usually gets upheld and the other gets overturned. But in the Federal Circuit context, if the Justices agree with the the Fed Circuit, it's easier and quicker to simply deny cert. The only time they need to bother with a case is when they want to consider overturning a decision. Following the logic, we would expect the only time the Federal Circuit to be upheld is when four justices disagree (enough to grant cert) but can't find a fifth to form a majority. Since most patent decisions are 7-2 or better, we rarely see this situation.
In other news, the first report of a major university selling it's professor's fair use rights has emerged. Apparently Cornell University has entered into an agreement with Association of American Publishers (think RIAA for books) which will significantly constrain the ability for professors to distribute learning materials to students without paying a royalty. Now, I'm not going to say the issue isn't tricky, but this is no Napster situation. Professors are not stealing anything... they are teaching students. Considered by some to be the most noble of all professions.
The heart of the issues is §107 of the Copyright Act, which codifies fair use rights. The act has a four item list which are considered non-exclusive factors to be used in determining a fair use. Since it is a non-exclusive list, there are other factors, but these are the big four. The very first one reads
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;So, as you can see, the professors might think that their teaching falls under the nonprofit education purpose fair use exemption.
The publishers counter that they produce educational materials for the purpose of making a profit. If the very people who are supposed to be buying these products (teachers and students) can just get them for free, then there is no money to be had and it's time to get out of the business. Which is as good an argument as any.
Of course, for decades (if not centuries) professors would have books placed on reserve at the university library where students could access the book for free. Online reserve, which is at the heart of the agreement, is just a natural extension of the old concept, right?
The article first caught my attention because of the inflammatory headline: "Professors get 'F' in copyright protection knowledge." Which I thought was pretty extreme, given the difficult legal questions at issue. But the article redeemed itself way at the bottom when it recognized that not all matters are legal. Even if the publishers are 100% correct, they are essentially biting the hand that feeds them... the professors they are seeking to limit are the very professors who write the material in the first place. Here's the quote from the article.
At Harvard University, in Cambridge, Mass., Chris Dede, a professor of learning technologies at the Graduate School of Education, says the Internet may let faculty members publish their own material and cut the book industry out of the picture.Which just goes to show you... you might have the best legal argument in the world, but if it doesn't hold up outside of the courtroom your just chasing short term victories in your long plunge off the cliff.
"If publishers push too hard, faculty may just decide they no longer need a middleman who collects all the profits in each direction," Dede says.
Friday, November 17, 2006
Important Update
Today I received unofficial word (official word to arrive via United States Postal Service) that I passed the California Bar Examination. Now all I need is to be found a moral person and I'm in the club.
Here's a pretty picture of my unofficial notification
Click to enlarge
Click to enlarge
Monday, October 30, 2006
Copyright Law and Political Ads
The Seattle Times has an editorial today that has finally pushed me into writing something about the intersection of copyright and political advertisement. For those of you who don't wish to read the article, it's a piece from the Times' Editorial Board calling on Darcy Burner to renounce an ad put out by the DCCC. The add uses a snippet from a TVW broadcast where Rep. Dave Reichert (R) said sometimes he listed to the GOP leadership and sometimes he doesn't. Unfortunately for him, he said it such that a little pruning makes it sound like he's a GOP waterboy.
But the Editorial is not just upset about the careful choice of words, they are upset because it infringes upon the copyright of WTV. So the obvious question is, does it? I haven't done a ton of research on the topic, but my gut says copyright is not an issue here.
First, the footage is being used in a political ad, which means it has ample First Amendment protection (in fact, as political speech it has the most First Amendment protection of all other speech). Second, while TVW isn't a governmental entity, it is a 501 (c)(3) non-profit corporation (meaning it has to be for the public good) and it receives nearly 100% of all funding from the Washington State government. Third, the footage is of a public official making public commentary, which means his words and appearance are newsworthy. There has always been an exception to copyright when the news is at stake (see INS v. AP... although the law is muddled here).
There was a Washington Post editorial a few years back about how President Bush rarely gives press conferences, choosing instead to do one-on-one interviews with private news outlets (CBS, NBC, ABC, FOX, etc). As a result, historical snafus on camera become the private copyright of the company which can be forced out of circulation by the White House by threatening to never grant another exclusive interview.
Thankfully Bush has been giving more press conferences of late, so this issue never really matured. But imagine, for a moment, if it did. Would the courts actually uphold a copyright infringement case against a political organization for using footage in an effort to broaden political discourse? I'm fairly certain that was not the purpose of copyright law.
In fact, the Times' Board shot itself in the foot with the following line.
...and I'm not even going to talk about fair use.
One more thought on this topic regarding YouTube. I've been reading some election blogs which have taken to distributing political ads, and their unique commentary, via the popular video sharing service. This is often the only way to see footage of ads which have been pulled from the air for reasons like embarrassing the candidate, provoking public outrage, spreading untruths, being stupid. These ads live on via YouTube, reviewed and distributed among the political junkies.
Are they legit? First analysis says it's copyright infringement. They aren't copying a few seconds, they are taking the whole kitten-kaboodle. No obvious fair use defense here. But it is political commentary, so it has the whole political speech component. Also, you've got the fact that the distribution is done by private individuals, so the initial producers (the one who pulled the ad in the first place) can claim its not their fault while continuing to get a little bang for their buck on an ad they were forced to pull off the air.
Which means that politics and market forces are going to be more important than the law, but it's still an interesting question.
But the Editorial is not just upset about the careful choice of words, they are upset because it infringes upon the copyright of WTV. So the obvious question is, does it? I haven't done a ton of research on the topic, but my gut says copyright is not an issue here.
First, the footage is being used in a political ad, which means it has ample First Amendment protection (in fact, as political speech it has the most First Amendment protection of all other speech). Second, while TVW isn't a governmental entity, it is a 501 (c)(3) non-profit corporation (meaning it has to be for the public good) and it receives nearly 100% of all funding from the Washington State government. Third, the footage is of a public official making public commentary, which means his words and appearance are newsworthy. There has always been an exception to copyright when the news is at stake (see INS v. AP... although the law is muddled here).
There was a Washington Post editorial a few years back about how President Bush rarely gives press conferences, choosing instead to do one-on-one interviews with private news outlets (CBS, NBC, ABC, FOX, etc). As a result, historical snafus on camera become the private copyright of the company which can be forced out of circulation by the White House by threatening to never grant another exclusive interview.
Thankfully Bush has been giving more press conferences of late, so this issue never really matured. But imagine, for a moment, if it did. Would the courts actually uphold a copyright infringement case against a political organization for using footage in an effort to broaden political discourse? I'm fairly certain that was not the purpose of copyright law.
In fact, the Times' Board shot itself in the foot with the following line.
Rather, it is about the use of copyrighted TVW footage without permission, which would never have been granted in this case.The purpose of the copyright is to ensure those who take the effort to make the copy are properly compensated. To say that the owner of the copyright would refuse the request, even if properly compensated, means the copyright law is being abused.
...and I'm not even going to talk about fair use.
One more thought on this topic regarding YouTube. I've been reading some election blogs which have taken to distributing political ads, and their unique commentary, via the popular video sharing service. This is often the only way to see footage of ads which have been pulled from the air for reasons like embarrassing the candidate, provoking public outrage, spreading untruths, being stupid. These ads live on via YouTube, reviewed and distributed among the political junkies.
Are they legit? First analysis says it's copyright infringement. They aren't copying a few seconds, they are taking the whole kitten-kaboodle. No obvious fair use defense here. But it is political commentary, so it has the whole political speech component. Also, you've got the fact that the distribution is done by private individuals, so the initial producers (the one who pulled the ad in the first place) can claim its not their fault while continuing to get a little bang for their buck on an ad they were forced to pull off the air.
Which means that politics and market forces are going to be more important than the law, but it's still an interesting question.
Wednesday, October 11, 2006
Truth in Technology Law
I keep meaning to write something about my thoughts on North Korea... but I can't seem to bring myself to do it. So here are a few words about something less important.
Two big developments to report in the world of internet joojoo. First, a Florida jury awarded a Florida women an $11 million defamation award against a Louisiana woman who posted mean things about her business online. This case is interesting for a couple of reasons. First, it's a default judgment, which means the defendant never showed up in court to fight the claim. As a result, we have some jurisdictional issues here. The Florida courts do not, be default, have authority over those in Louisiana. You either have to file in Louisiana or opt for Federal Court. It is possible the defendant waved jurisdiction, but I assume for purposes here that she not an idiot.
Based the article all she did was post defamatory messages about the Florida women's business in an online community. Are these acts sufficient to establish contacts with the forum state? Under the standard International Shoe test for jurisdiction, I'd have to say no. The defendant did not avail herself of the benefits of the forum state and it sure doesn't conform to my notions of fair play.
Which brings me the reason the Florida women sued in the first place... she wanted to send a message. See, the defendant can't pay the judgment. She couldn't even pay a lawyer. The suit was brought to scare her, and others, away from the internet. But this sort of award should never have happened if there were equal parties in the proceeding. Yes, the message has been sent, and the message is wrong and damaging for communication on the internet. The ability to speak should not be limited to those who can afford lawyers.
Second big news: GooTube. But in less than a day after the announcement comes a flood of analysis saying Google is going to get its pants sued off. The theory goes that most (cough, cough) of the YouTube content is copyrighted. Let's assume that's true. Up until now, content holders have tolerated YouTube's infringement because even if you sue and win, YouTube has shallow pockets... which means no actual award payment... which means no incentive to sue.
But now, cry the pundents (and Microsoft's Ballmer), the holder of YouTube has cash. Lot's of cash! So here come the lawyers. Which is probably true... lots of people will sue with hopes of reaching a settlement with the Google giant.
That being said, I don't think Google will spend a dime on settlements with these content vultures. First, Google has shown a willingness to stand against copyright abuse with their book scanning project, the legality of which is something of intense debate. Second, and more importantly, a plain reading of the law shows Google isn't infringing any copyrights. See, under the Digital Millennium Copyright Act, a service provider (such as YouTube) is not liable for infringement by its users provided it has a reasonable means for rights holders to take down the violating copy.
Now, maybe a Grokster style complaint can be won against Google... but the Grokster decision was based largely on the intent of the company. Essentially, the court felt Grokster was encouraging copyright violation in its business plan. YouTube is quite different and we've seen an explosion of user driven content flourish there. I don't think Groskter sticks.
At this point, two days since the announcement, every single newspaper I read has run a story about the legal pitfalls for Google, so it'll be interesting to see how this plays out in the courts, the public, and the market.
Two big developments to report in the world of internet joojoo. First, a Florida jury awarded a Florida women an $11 million defamation award against a Louisiana woman who posted mean things about her business online. This case is interesting for a couple of reasons. First, it's a default judgment, which means the defendant never showed up in court to fight the claim. As a result, we have some jurisdictional issues here. The Florida courts do not, be default, have authority over those in Louisiana. You either have to file in Louisiana or opt for Federal Court. It is possible the defendant waved jurisdiction, but I assume for purposes here that she not an idiot.
Based the article all she did was post defamatory messages about the Florida women's business in an online community. Are these acts sufficient to establish contacts with the forum state? Under the standard International Shoe test for jurisdiction, I'd have to say no. The defendant did not avail herself of the benefits of the forum state and it sure doesn't conform to my notions of fair play.
Which brings me the reason the Florida women sued in the first place... she wanted to send a message. See, the defendant can't pay the judgment. She couldn't even pay a lawyer. The suit was brought to scare her, and others, away from the internet. But this sort of award should never have happened if there were equal parties in the proceeding. Yes, the message has been sent, and the message is wrong and damaging for communication on the internet. The ability to speak should not be limited to those who can afford lawyers.
Second big news: GooTube. But in less than a day after the announcement comes a flood of analysis saying Google is going to get its pants sued off. The theory goes that most (cough, cough) of the YouTube content is copyrighted. Let's assume that's true. Up until now, content holders have tolerated YouTube's infringement because even if you sue and win, YouTube has shallow pockets... which means no actual award payment... which means no incentive to sue.
But now, cry the pundents (and Microsoft's Ballmer), the holder of YouTube has cash. Lot's of cash! So here come the lawyers. Which is probably true... lots of people will sue with hopes of reaching a settlement with the Google giant.
That being said, I don't think Google will spend a dime on settlements with these content vultures. First, Google has shown a willingness to stand against copyright abuse with their book scanning project, the legality of which is something of intense debate. Second, and more importantly, a plain reading of the law shows Google isn't infringing any copyrights. See, under the Digital Millennium Copyright Act, a service provider (such as YouTube) is not liable for infringement by its users provided it has a reasonable means for rights holders to take down the violating copy.
Now, maybe a Grokster style complaint can be won against Google... but the Grokster decision was based largely on the intent of the company. Essentially, the court felt Grokster was encouraging copyright violation in its business plan. YouTube is quite different and we've seen an explosion of user driven content flourish there. I don't think Groskter sticks.
At this point, two days since the announcement, every single newspaper I read has run a story about the legal pitfalls for Google, so it'll be interesting to see how this plays out in the courts, the public, and the market.
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