Blog: Law

The world of copyright has sunk to a new low: a photographer/blogger excited when people use his pictures without permission, so he can hit them with big fat lawsuits for thousands or tens of thousands of dollars. Ka-ching!

Dan Heller calls this a "windfall" for photographers and offers tips on how to maximize the chance that the infringement counts as "willful", triggering the highest possible damages of $150,000 per image. Public Knowledge calls Heller a "copyright troll", analogous to the "patent trolls" who buy up patents not to build innovative products but to sue everyone in sight.

When a legal system gets out of whack, like the penalties for infringement that lead to a $220,000 judgment for sharing 24 songs, additional consequences are inevitable. Despite the dubious deterrent effect of raising punishments past a certain point, Congress keeps increasing penalties at the behest of the music industry. But copyright law doesn't just apply to music, and citizens are getting caught in the crossfire in many other ways. Maybe we need a different approach.

Utah law professor John Tehranian released a new paper about copyright starring a hypothetical law professor named John who goes about his everyday life, doing everyday activities—except in imaginary John's world, every copyright holder asserts the right to, and wins, statutory damages every time John infringes copyright. The total bill: $12.45 million.

Read more...

Columbia Law professor Tim Wu has a great series of articles in Slate about laws that go unenforced in America, like drug abuse laws for legal prescription drugs, or immigration laws against those who employ illegal immigrants. In these and the other cases Wu identifies, one common thread unites them all: repealing the law would be politically infeasible, but enforcing the law would harm or inconvenience large numbers of upper middle class Americans who, in aggregate, are politically powerful.

For those times when we look with displeasure on unfair or inconsistently applied laws, Wu makes a simple point: the arbitrary enforcement of these laws is society's solution to the complex problems underlying them, an equilibrium state in itself. It's still extremely unfair—the dichotomy between illegal drugs and abused legal drugs penalizes poor and minority people disproportionately, and some religious groups win exceptions under the First Amendment for their activities while others do not. But it is an unfortunate reality that the politically influential groups get what they want, and when explicitly codifying that in a law would be too controversial, they get what they want anyway by toleration.

It's not a great system; besides the economic injustices, one big flaw is the way prosecutors can find a crime for almost anyone if they try (Wu relates a game Southern District of New York prosecutors played where they would figure out what they could charge Mother Theresa or John Lennon with). But it's the system we've got, and it's hard to see how to change it. In the live chat that followed the series Wu goes into some alternatives that have been proposed, like automatically sunsetting laws, but subsequent chat questions also make clear the flaws or controversies inherent in any of the proposals.

The Bush administration has been remarkably successful at spreading false information simply by repeating it over and over. And according to a few recent psychological studies reported in the Washington Post, even if the false information is being labeled false on a flyer or being debunked by a public official, just repeating the statement to rebut it can actually reinforce it in people's minds.

In a nation built on free speech, and where civil libertarians are fond of saying that "the solution to bad speech is more speech," these findings illuminate the difficulty of fighting misinformation. Appropriately, two days ago the Yale Law Journal ran a set of online articles discussing ways to fight Internet harassment such as the defamatory material on AutoAdmit.com that roiled the law school community last year.

Most of the Yale Law Journal articles suggest regulation such as imposing notice-and-takedown rules on search engines, but none of the proposed solutions would really fix the problem, and James Grimmelmann argues against censoring search engines, effectively and rightly in my opinion. The Post article suggests a few better ways to argue without repeating the false information, like "Bin Laden was responsible for 9/11" rather than "Saddam Hussein did not attack us, Bin Laden did", but acknowledges that such transformations may not be possible.

In both cases, we're still stuck with the problem that it's easier to anonymously defame someone than for the victim to clear his or her name, and it's easier to mislead the American public than to stand up for the truth.

The Internet moves very fast. The law moves slowly. But justice has a way of inexorably catching up to wrongdoers. Scooter Libby exposed a covert agent for political gain, and years later, eventually was caught and sent to jail (though Karl Rove probably got away with it).

Now justice is slowly moving against the posters on AutoAdmit.com who wrote that one Yale Law student "clearly ... deserves to be raped" or should be "hate-fucked"; claimed that she has herpes, bribed her way into school, was having a lesbian affair with the Dean of Admissions, has fake breasts, and a host of other nasty and defamatory statements; posted pictures of another student and then stalked her at the school gym to get additional pictures of her, and then wrote about how they would like to sexually assault her. The Wall Street Journal law blog reported that two law professors, at Yale and Stanford, have filed a lawsuit on behalf of the two unnamed students. Here is the full complaint (PDF).

It's hard to believe what terrible people would actually write these things. It's also fairly mind-boggling that they thought they could remain anonymous; hopefully they were wrong and the discovery will unmask these students who surely ought to have their employment terminated at whatever law firms where they may be working. (One of the site administrators, Anthony Ciolli, who deleted posts which unmasked contributors to AutoAdmit but refused to remove the defamatory posts against the women, already lost his law firm job offer over the site.) These people should be revealed and punished, most of all to deter people in the future from hiding behind an anonymous site while psychologically tormenting innocent women for the sheer thrill of it, as they clearly were here.

Those of us who aren't women don't always realize the verbal abuse many receive from asshole men. Here's an example.

At Drinking Liberally on Thursday, Jill made an interesting point: while women can at least walk away and try to forget the harassment (not fun, for sure), when this behavior goes online, the nasty words never go away. A group of juvenile law students ran a contest in February to identify the "hottest" women at "top 14" law schools. (As Jill pointed out: why top 14? Wonder which school they were from?)

The contest organizers posted pictures from the women's online profiles, and posters on the forum quickly started denigrating the students, especially those who asked to have their pictures removed. According to the UVA Law Weekly:

AutoAdmit members continually referred to some of these UVA Law students as "whores" and "sluts," among other terms too obscene to print. In other representative threads, an anonymous AutoAdmit poster wrote about performing sex acts on them, while another told them to "[g]et raped." What's more, nearly all of these threads are accessible through any Google search that includes the students' names.

Jessica Valenti, one person who has been subjected to completely undeserved humiliation online, wrote a terrific article about sexist conduct online.

Is this what people are really like? Sexist and violent? Misogynist and racist? Alice Marwick, a postgraduate student in New York studying culture and communication, says: "There's the disturbing possibility that people are creating online environments purely to express the type of racist, homophobic, or sexist speech that is no longer acceptable in public society, at work, or even at home."

While the obscenity thrown at bloggers like Jessica and Jill is completely inexcusable, at least they have chosen to be public spokespeople and are, sadly, used to this sort of abuse. Not so the other women on the AutoAdmit contest, whose names have been withheld from press accounts but for whom an online search brings up pages of postings with titles calling them "bitches" by name and making claims about the size or genuineness of their breasts.

The women most suffering from this search-results besmirching are those who have little online presence and who have unusual names, because there are fewer conflicting pages that might beat out the defamatory ones on a search. Civil libertarians (with whom I almost always agree) like to say that the solution to bad speech is more speech, and so in this case one effective remedy is to go public (leading to news stories that will outrank the abusive posts) or write a blog.

However, all of these remedies make the subject an even more public person, and this means that privacy is often a one-way trap door. Once lost, privacy can never be regained, and some people have it taken from them in what clearly a violation of these women. Friends who have avoided making Facebook or Friendster profiles, particularly women, often cite the fear of losing this privacy. Will we read a trend story in the New York Times one day of couples giving their children common names in a deliberate attempt to create some privacy in a world where that is increasingly difficult to preserve?

When I lived in Mountain View, California, Mike and I shared a corporate apartment owned by AvalonBay, a large national real estate owning company, and run by some very greedy management. Upon the second renewal of our lease in 2001, the real estate market was on the verge of collapsing; rents were stagnant had not yet fallen. It was against this backdrop that the leasing office decided to insist on a rent increase to a level that seemed unsustainably high. But with the hassle of moving, Mike and I decided to pay it anyway, until we discovered that the company was also slipping a new provision into the lease, a clause that would make it much harder, and far more expensive, should we need to break the lease. Clearly, they were trying to lock as many residents into high rents before prices came down (and down they indeed came - later renters in the same apartment compex paid two-thirds as much less than a year later, prices which persist even today).

When we moved out, the management office delivered the third and worst greedy act: they kept a substantial portion of our security deposit, claming that they were entitled to deduct the cost of cleaning the apartment and restoring it to top condition for the next renter. We hadn't inflicted any unusual damage, just normal wear and tear, but they kept the money nonetheless. In fact, the renewal contract we ultimately refused to sign, the one with the abhorrent lease-breaking penalties, also had a provision stating that cleaning and repainting upon move-out would not count as "normal wear and tear."

It was wrong, and illegal, to keep the deposit, but we were so tired of dealing with the greedy management and the sum relatively small that we did not push the issue.

Five years and four apartments later, I receive a notice in the mail that another resident, a Julie Ko, filed and fought a class action lawsuit against AvalonBay for this very same illegal practice in apartments throughout California during a period of several years. (Pretty impressive that they managed to track me down!) According to the notice, AvalonBay and Ko reached a settlement deal in which all of us get a small amount of compensation. The money isn't all that much - it doesn't equal what AvalonBay originally withheld and in any case was not a huge amount in the first place - but it is really nice to see a big, greedy, company, which implemented rules to screw their tenants unethically and illegally, taken to account and forced to make restitution. Class action lawsuits really can work!

It's 1:20, and so far I've seen two April Fools jokes. Both were about lawsuits being filed relating to intellectual property: Improv Everywhere being sued for defamation by the estate of Anton Chekov (defamation isn't actually IP, but it sounds like an IP complaint would be more appropriate if this were real), and the RIAA suing Google for contributory copyright infringement.

Once upon a time, IP lawsuits weren't a part of everyday pop culture.

What happens when law students go on dates:

John goes to pick up Sara at her parents' house. Her parents bought the house in 1972 from the owner of a set of six contiguous plots of land, each containing a house. When they purchased the house, they did not negotiate for use of the connecting driveway. The deed illustrates that the land purchased includes only half of the aforementioned driveway, yet Sara's parents have been using it for years without complaint. However, when John goes to pick up Sara, and crosses the driveway, neighbor Bob yells out the window of his house, demanding that John get off his land. Bob also bought his plot from the original owner, but he signed a covenant promising that there would be no blue cars ever on the property of anyone in the entire subdivision. Of course, John's car is blue. Sara's parents met in 1966 but have never married. In the state we are in, there is no common-law marriage rule, and property is divided 50/50 upon divorce. John is distracted by Bob's yelling, drives his car into the house, and runs over Sara's mother, Betty. Betty, who does not have a living will, is transported by helicopter to County Hospital. On the way to the hospital, the helicopter passes over a highway where Frank, drunk and known to have seizures, is driving home. Ten minutes prior, he picked up a hitchhiker at the side of the road, who wears thick glasses. As the helicopter passes over the highway, Frank steals the hitchhiker's glasses and throws the hitchhiker out of the car. The helicopter crashes, killing the hitchhiker, Betty's mom, and the helicopter pilot, who mailed his health insurance premium yesterday, but it has not yet been received by his insurance company. Meanwhile, Sara's father, who is in this country illegally, is detained by the police and sent to a camp outside the United States but under American control. John offers Sara a tranquilizer to calm her down from all of this commotion, and while she is in a state of semi-consciousness, he induces her to transfer to him one hundred bushels of wheat at 14 cents per bushel, at a date set three months in the future. Sometime between Tuesday at 10 PM and Wednesday at 2 AM (exact time is uncertain, although a videotape that was recovered through the use of an undercover informant may provide more information) a tornado causes wheat prices to rise dramatically (as well as destroying John's blue car, which has an insurance policy that reads, "acts of natural disaster will be covered only if they happen on Tuesdays), and John seeks to enforce the agreement. The date ends with a kiss.

Hypothetical courtesy of the world's funniest law student.