09 June 2010

Playing the 2–7–1

  • The definition of chutzpah now includes the opening statement from The Hair's lawyer to the jury, in which he proclaims "Rod ain't corrupt." Sorry, Mr Adam, but the fact that Rod Blagojevich was an elected, major-party Illinois politician by itself is probable cause for believing that he is, in at least some sense, "corrupt." You're going to have to do a lot better than that... and pounding on the furniture doesn't make me think you've got much in the way of facts, or law, on your side ("When the facts are for you, argue the facts; when the facts are against you, argue the law; when the facts and the law are against you, pound on the table").
  • The Child Online Privacy Protection Act, or COPPA, requires special safeguards for 'net content providers and vendors who deal with children. It's arguable — indeed, it's the best reading of both the statute and the FTC regulations — that a website can't even put a cookie (let alone a tracking cookie) on a computer being used by a kid without full COPPA compliance. iSafe is a coalition that has been trying to establish a "simpler" safe-harbor way for advertisers and social media platforms to evade the privacy protections required by COPPA... and its proposal has just been rejected by the FTC.

    OK, that was nice and technical; why might it matter to authors? Because the current generation of DRM for e-books violates COPPA, and many proposals for more-customer-specific DRM and watermarking also do so. E-book systems that rely upon downloading systems and cloud-based "bookshelves" — such as, but not limited to, the Kindle and the iPad — are not complying with COPPA now, which essentially kills a significant potential market for e-books. (n.b. It doesn't matter if the parents buy the e-book for the kid using their own iPad accounts; because the use is by a child under 13, COPPA applies.) Extending this to online music vendors is left as an exercise for the student...

  • St George's diary entry for 08 June 1940 has a lot to recommend it. In particular, consider this:

    Stephen Spender said to me recently, “Don’t you feel that any time during the past ten years you have been able to foretell events better than, say, the Cabinet?” I had to agree to this. Partly it is a question of not being blinded by class interests etc., e.g. anyone not financially interested could see at a glance the strategic danger to England of letting Germany and Italy dominate Spain, whereas many rightwingers, even professional soldiers, simply could not grasp this most obvious fact. But where I feel that people like us understand the situation better than so-called experts is not in any power to foretell specific events, but in the power to grasp what kind of world we are living in.

    (emphasis in original) And the kind of world we're living in — as I implied Monday while discussing Mr Tabarrok's misunderstanding of his subject, and as fundamental to the Blago trial — is a world of increasing abuse of power combined with a tired expectation that abuse of power is routine, and just something we have to live with.

  • Here's an interesting, second-order analysis of economics and copyright that properly points out that nobody has verifiable data to support any conclusions on a "single right way" to treat intellectual property at any level. One cannot make "progress" or "individual profit" or "subset profit" arguments without some data; and the data is so corrupted that it's not reliable.
  • Earlier this week, the Ninth Circuit released an opinion in Lahiri v. Universal Music and Video, No. 09–55111, that sanctioned the plaintiff's attorney a quarter of a million dollars for pursuing a clearly-frivolous-on-its-face copyright claim. From a civil procedure standpoint, this was interesting because it relied not on Fed. R. Civ. P. 11 for some specific pleading, or Fed. R. Civ. P. 37 for some specific discovery misconduct, but on the court's inherent power and 28 U.S.C. § 1927 for bringing the matter into court improperly in the first place: There was, in the view of both the Ninth Circuit and the trial judge, an unassailable work-for-hire agreement1 that totally divested the plaintiff of both standing and any equitable interest.

    Second-Circuit-based copyright litigator Ray Dowd sees this as the beginning of the end of the world. OK, maybe his rhetoric isn't quite that extreme, but the tone and substance of what he says are. Leaving aside my increasing disdain for the Second Circuit's jurisprudence on civil procedure (over the past decade, no other circuit has a higher reversal rate on questions of civil procedure squarely presented to the Supreme Court) and copyright law (due to the Second Circuit's continued refusal to reexamine its 1909 Act precedents in light of the 1976 Act, let alone in light of the WIPO Treaty), I think there's a more-fundamental problem with Mr Dowd's position: It assumes that the bar really is effective in its self-regulation, and that therefore judges need not get involved — or use powers that they have had for decades and even centuries — in the face of misconduct before them. And there's no other way to characterize this matter than attorney misconduct. Since it is conduct outside of discovery, Rule 37 doesn't apply; since it relates to the entire basis for virtually every filing made in the matter, it is beyond Rule 11 because it's too big (and not amenable to safe-harbor treatment). That leaves only inherent powers and § 1927.

  • Last, and far from least, a sport-related note: Starting on Friday, my attention is going to be at least in part focused on South Africa and the World Cup. Thanks to the time difference, that means that many posts from 11 June through 11 July will be in the evening, after I finish watching the non-sissy football (no 15kg of armor just to meet Mr Goalpost, no tea breaks every ten seconds, constantly changing balls, and limited substitutions) for the day... or, perhaps, breathlessly typed with even more typographical errors at halftime and between games.

  1. Interestingly, it's not the US's whacko WFH clause that's at issue, but India's (Lahiri, slip op. at 8134–37)... which is written in English, so relying upon a foreign "expert opinion" for what it means was considered unnecessary.