Scrivener's Error

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Scrivener's Error	Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

30 September 2010

link to: 13:15 [GMT-6]

Nerdy Internet Link Sausages

Like you're surprised that I'm a nerd, especially concerning the 'net itself?

Maybe bad scientific awareness is related to bad science reporting (and writing in general). It doesn't help that most "science reporters" are, themselves, barely science-literate (if at all); it doesn't help that their audience is barely science-literate (if at all); it doesn't help that most scientists are barely literarily literate (if at all); and combine these three factors, and one has a positive feedback loop that disproves the impossibility of a perpertual motion machine. Anybody remember "Trees cause pollution"?
Danica Patrick might want to consider skipping any races in Illinois to help keep her sponsor GoDaddy out of court in Illinois... although after yesterday's opinion in uBid, Inc. v. GoDaddy, Inc., No. 09–3927 (7th Cir. 28 Sep. 2010) (PDF), even that probably isn't good enough. This is a decision on personal jurisdiction that warms my civil procedure nerd heart, both because it's a cautionary tale for the 'net and because the result was so damned obvious. And relies on porn.

Quick refresher: Personal jurisdiction concerns whether a particular court has the authority to impose its judgment on a particular defendant in particular circumstances (the plaintiff assents to that jurisdiction by filing suit). That requires either two or three things: Either minimum contacts plus consistency with traditional notions of fair play if the contacts are so pervasive or of such a nature that any claim would be proper (general personal jurisdiction), or minimum contacts plus consistency with traditional notions of fair play and sufficient relationship between the contacts and the cause of action that it's appropriate to hear that cause of action (specific personal jurisdiction). Either general or specific personal jurisdiction is good enough, and specific is a subset of general: If one finds general personal jurisdiction, one need not consider specific.

In any event, GoDaddy is incorporated in Arizona; maintains its administrative operations in Arizona; and, in its customer agreements, selects Arizona law and Arizona courts. (GoDaddy also claims that all of its servers are in Arizona, but this is not correct; it didn't help this time, in any event.) uBid is an Illinois-based 'net auction site that sued GoDaddy for cybersquatting on similar domain names, in Illinois federal court. GoDaddy challenged the personal jurisdiction of the Illinois courts over it, and won in the trial court. Under two similar, but parallel, rationales, the Seventh Circuit reversed, finding that there was specific personal jurisdiction in Illinois courts over GoDaddy.

In addition to the granddaddy of personal jurisdiction decisions — International Shoe — the Seventh Circuit relied upon two more-recent lines of decisions. The majority (Judge Hamilton and Judge Flaum) relied on a porn feud between Hustler and Penthouse, which concerned whether a libel suit by a Penthouse officer against Hustler could be heard in a New Hampshire court (Keeton v. Hustler); the Supreme Court found in that case that the ten thousand (!) copies distributed in New Hampshire were enough to support personal jurisdiction. The concurrence (Judge Manion) relied on a slightly more general decision concerning actions in one state knowingly and purposefully directed into another state (Calder v. Jones), where the Supreme Court found that such purposeful direction was sufficient to support personal jurisdiction. I was a bit surprised that nobody cited Asahi Metal, the reasoning of which is directly on point and came from an Arizona-based justice (Justice O'Connor), but no matter: The court reached the right decision, finding that GoDaddy's pervasive presence advertising and providing its domain registration services to Illinois residents — including, at least purportedly (because GoDaddy does no verification of customer information), a number of Illinois typosquatters against uBid — was sufficient to support specific (but not general) personal jurisdiction over GoDaddy.

Why does this matter to authors? Whether using the specific reasoning of Calder or the specific reasoning of Keeton, what we're left with is the conclusion that if one has reason to know that the target of one's expression is in state X, one can expect to defend against any lawsuit related to that expression in the courts of state X. On one hand, this is a fair result, at least in the abstract; it makes sense that if I were hypothetically to call Minnesota's Representative Bachmann an insane bigoted loon, I should expect to be hauled into a Minnesota court (although I have certain other defenses available to me, such as "hyperbole," "opinion," "actual malice," and "truth"). On the other hand, though, the purported "regulation" of the legal profession makes this result fundamentally unfair when applied to individuals: Protectionist "local counsel" rules will tend to screw individual defendants, both substantively and financially, when dragged into court halfway across the country (or even just over a river). Thus, as with all decisions on jurisdiction, there's both good and bad lurking here.
Why the Comcast/NBCU merger? As Professor Crawford points out, it's the advertising dollars: Comcast's ad revenue last year was higher than the combined total of the top 100 only two decades ago. Don Draper must be smiling. Somewhere.
Regression toward the mean: It may be a valuable explanatory scientific theory with no realistic alternative, but that doesn't make it a good thing all the time. Although later down the same page on the same blawg, one must wonder if we're regressing toward mean vegetables or merely indicting the way we prepare them...

Labels: internet, jurisprudence, mass media, politics, science

Ritual disclaimer: This blog contains legal commentary, but it is only general commentary. It does not constitute legal advice for your situation. It does not create an attorney-client relationship or any other expectation of confidentiality, nor is it an offer of representation.

All material © 2003–12 except where otherwise indicated. All rights reserved. This blawg does not use the Creative Commons License, although I'm usually pretty good-natured about permissions for attributed reuse.

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Sausages?

Internet link sausages, as frequently appear here, are gathered from uninspected meaty internet products and byproducts via processes you really, really don't want to observe; spiced with my own secret, snarky, sarcastic blend; quite possibly extended with sawdust or other indigestibles; and stuffed into your monitor (instead of either real or artificial casings). They're sort of like "link salad" or "pot pourri" or "miscellaneous musings" (or, for that matter, "making law"), but far more disturbing.

I am not responsible for any changes to your lipid counts or blood pressure from consuming these sausages... nor for your monitor if you insist on covering them with mash or sauce.

Archives

Warped Weft

Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Links of Interest

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Writer Beware and the Writer Beware Blog provide essential knowledge for writers who don't want to be ripped off
Writing-World.com published by the former managing editor of the now-defunct Inklings
Agent Research & Evaluation provides both free and paid analyses of literary agents
US Copyright Office, including both registration forms and records and quite a bit of other helpful information
Trademark Electronic Search System (TESS) allows searches of granted, pending, and some rejected trademark registrations
US Supreme Court Opinions from the current and past couple of terms
Law Library of Congress includes statutes for free
The Public Library of Law can help you find the law... but not use it in court, as many of its resources are not in proper form and do not provide all of the citation information needed in court papers
Legal, free e-books are available through Online Books (University of Pennsylvania) and Shakespeare (MIT)
Legal, free music is available through
- ClassicCat.net (what kind of music do you think you'll find here?)
- Music.Download.com (long-awaited successor to MP3.com)
- Janis Ian (artist)
- John McCutcheon (artist)

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

A blawg is sort of like a blog on legal issues, but usually has a lot more links to outside resources (other than other blogs) than does a typical blog. Scrivener's Error is a blawg, not just a blog. You can find other blawgs at < ? law blogs # >.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the Supreme Court, don't forget SCOTUSBlog.
Some academics' blawgs with a variety of political (and doctrinal) viewpoints:
- Professor Anthony Arend (Georgetown Law)
- Professor Stephen Bainbridge (UCLA Law) (aka "The Perfesser")
- Professor Jack Balkin (Yale Law)
- Professor Dennis Crouch (Missouri Law) (better known as Patently-O)
- Professor Michael Froomkin (University of Miami Law)
- Professor Eric Goldman (Santa Clara University Law)
- Professor Rick Hasen (Loyola-LA Law)
- Professor Brian Leiter (U of Chicago Law/Philosophy)
- Professor Lawrence Lessig (Stanford Law)
- Professor Michael Madison (Pitt Law)
- Professor Rebecca Tushnet (Georgetown Law)
BoingBoing, by speculative fiction writer (and 'net activist) Cory Doctorow, is quite hostile to copyright enforcement efforts, particularly regarding file-sharing
The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance
Cyberlaw (Stanford) has its agenda grounded firmly in the so-called "digital commons," which might make a bit more sense if any of the advocates of that viewpoint understood diddly-squat about population ecology
The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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