Worse Than a Trademark on Realtor

If you thought yesterday’s news that “realtor” is not a generic term was counterintuitive, check out this patent application.

Can anyone say “prior art”?

(not to mention that the enablement requirement leaves something to be desired…)

SCO v. IBM: Trial by Jury

I appreciate Groklaw’s timely and incisive coverage of SCO v. IBM; however, the site’s primary author (a paralegal) sometimes makes subtle erroneous statements of law. For example, in yesterday’s posting, What’s Wrong with Enderle’s “Legal” Strategy, she writes:

Mr. Enderle, SCO’s true believer, has written that if he were on a jury, he’d vote for SCO. That, of course, does not amaze you. He has also given us a heads up on what he believes they will tell a jury and why he thinks it will convince them. Unfortunately for Mr. Enderle’s theory, he doesn’t understand that when you ask for a declaratory judgment, as IBM has on its counterclaims, the jury doesn’t decide it. Declaratory judgments are decided by the judge.

This is wrong. See, e.g., Beacon Theatres v. Westover, 359 U.S. 500 (1959):

The District Court’s finding that the Complaint for Declaratory Relief presented basically equitable issues draws no support from the Declaratory Judgment Act, 28 U.S.C. 2201, 2202; Fed. Rules Civ. Proc., 57. See also 48 Stat. 955, 28 U.S.C. (1940 ed.) 400. That statute, while allowing prospective defendants to sue to establish their nonliability, specifically preserves the right to jury trial for both parties. [..] It follows that if Beacon would have been entitled to a jury trial in a treble damage suit against Fox it cannot be deprived of that right merely because Fox took advantage of the availability of declaratory relief to sue Beacon first.

(emphasis added)
The issue is not whether it is a declaratory judgment action, but whether there are disputed issues of fact for the jury and the nature of the relief sought. Equitable (or injunctive) relief must be granted by a judge, but claims for other sorts of relief can be heard by a jury, whether it is a declaratory judgment action or not. I haven’t examined the papers carefully enough to answer that question definitively in this case, but I suspect there are disputed issues of fact in the counterclaim apart from any requests for injunctive relief. Thus, IBM’s declaratory judgment counterclaims may, in fact, go to a local jury.

This is similar to a Groklaw error from this past summer, in which the author confused a preliminary injunction or summary judgment (both of which are decided by a judge) with declaratory judgment. See my explanations at the time.

What’s the catch?

I just opened an account at ING Direct·, an online-only bank that provides 2% interest in an “orange savings account” (vs. 0.5% at my regular bank) with no fees, minimum balance, etc..

What’s really surprised me is their privacy policy·:

ING DIRECT’s privacy policy exceeds the standards required by congressional legislation. One requirement of the Gramm-Leach-Bliley Financial Modernization Act of 1999, or GLB, requires financial institutions to provide customers with the ability to “opt-out” of information sharing. ING DIRECT has adopted an “opt-in” privacy policy, which means that we will not share your data unless you explicitly request that we do so.

I don’t think I’ve ever received a privacy policy from a financial institution that say much more than “we promise we’ll comply with the law!” Compare my credit union, whose privacy policy says: “We share member information with discretion. We may share some or all of the non-public, personal financial information we collect about you, but we pledge to share such information with prudence and only as permitted by law.” Great—prudence—I’ll definitely be able to enforce that one!

The mailing I got from ING Direct is even better:

Banks have assumed for too long that they can share information about you, and then ask if you mind; requiring you to tell them not to, or “Opt-Out” of their information sharing. ING DIRECT will not share your information unless you ask us to, or “Opt-In” to us sharing your information.

The only thing I find a little irritating so far is that they always answer the phone with, “ING Direct, how can I help you save more money?”

So what I want to know is: what’s the catch?