10 June 2008

Promises, Promises

Life. Can't live with it... wait a minute.

  • It's that most-dangerous time of the year: June. The end of the Supreme Court's term. Yesterday, the Court issued two opinions of interest. Or, at least, I find them interesting.
    • In Bridge v. Phoenix Bond and Indemnity Co., No. 07–210 (09 Jun 2008), the Court actually expanded RICO liability over the petitioner's protests. This is not quite "stop the presses" news — after all, it deals with the technical requirements for mail fraud — but it does mark a minor reversal from the trend during recent years to restrict RICO liability. The key point is reliance. The petitioner argued that there is no mail fraud, and hence no RICO liability, unless the party suing for mail fraud had itself relied upon fraudulent misrepresentations found in the mailing. The Court held otherwise:

      Using the mail to execute or attempt to execute a scheme to defraud is indictable as mail fraud, and hence a predicate act of racketeering under RICO, even if no one relied on any misrepresentation. And one can conduct the affairs of a qualifying enterprise through a pattern of such acts without anyone relying on a fraudulent misrepresentation.

      Id., slip op. at 8-9 (internation citation omitted). This matters because it focuses on who was injured by the fraudulent scheme that used the mails, not on misrepresentations made in the mails. This is a hint to fraudulent vanity presses...

    • In Quanta Computer, No. 06–937 (09 Jun 2008), the Court held that the patent rights for a method patent were exhausted at the first licensure — that is, those who bought computers containing Intel chips (which, in turn, included technology licensed from LG Electronics, a Korean giant) did not owe LG any additional license fees. This is parallel to the first sale doctrine in US copyright law (17 U.S.C. § 109). What I find disturbing is that it had to be litigated... which may turn on the details of the licenses themselves, not on the exhaustion doctrine per se.

      Frankly, the issue is a real mess. Leaving aside my disdain for method patents, at least as they are currently understood, this might remind you of Judge Easterbrook's bassackwards opinion in Zeidenberg, which allowed a provider of telephone directory compilation CD (which had an extremely thin copyright, as it was the classified ads; had it been the alphabetical listings, it would have failed completely under Feist) to prevent "purchasers" from posting that compilation, or allowing non"purchasers" to search it via an online interface, by alleging that all the "purchasers" got was a license to a limited use. It might also remind you of those goofy FBI warnings on the DVD you just got from the library or rental place or Netflix claiming that the DVD may not be lent or rented.

      The "intellectual" in "intellectual property" obviously does not refer to the orientation of all of those who claim it...

    But still no word yet on the GITMO/military commission cases. At least one decision is expected to be released on Thursday, at which time I'll also comment on a few cases that were denied hearings.

  • HarperCollins has sued an author over an undelivered memoir. Considering the subject matter — the Gotti crime family — nondelivery is probably better for everyone: Its credibility would probably be somewhere around James Frey's, or at minimum perceived that way.
  • The contemporary search for causation in everything runs into pop-cultural misunderstanding of the butterfly effect. The butterfly effect does not mean that one can trace a causal chain between that butterfly's wings flapping and the monsoon in Szechuan; it means that one cannot trace absolutely certain causation of the monsoon, and nothing more. (And I took my last physics course around the time chaos theory was first being propounded.) Perhaps the misunderstanding of the butterfly effect is related to all of those "when bad things happen to good people" memes...
  • On the one hand, many publishers (in the broadest sense of the term) are trying to increase the speed of write. It's sort of ironic that they want writers to produce faster at the same time the publishers are doing less and less to edit and otherwise add value to those products. Which leads into an accelerating trend toward disintermediation in popular music... and given the very existence of Milli Vanilli and Britney Spears, the rapid demise-by-evolution of current pop-music conglomerates can't come fast enough.
  • Finally, just after the end of finals, here's a call for more grades.