The Substantially Similar Weblog

My itinerant brother, presently in Tucson, Arizona is trying to visit my less-itinerant brother in Tahoe, California. (The latter is an editor and photographer for the Tahoe Daily Tribune, now available online in full print-like layout). Later this week, the itinerant brother flies from Tucson to Sacramento, the least expensive airport closest to Tahoe.

Amtrak has a route from Sacramento to Tahoe (actually nearby Truckee), but it is actually a bus. Having made his plane reservations, my brother waited until today to order his Amtrak tickets online, only to discover the following:

Yes, it’s true, you can’t actually board that bus (the only way to get to Tahoe after my brother’s plane arrives), unless you’ve at least set foot on a train first.

Some research suggests that California State Law prohibits Amtrak from offering bus-only services within the state, apparently so it won’t compete with bus companies.

I did figure out what I hope is a clever workaround: the next closest train stop on one of the lines to Sacramento is Davis. Amtrak allows you to buy a ticket from Davis to Truckee via Sacramento for basically the same price as the bus from Truckee to Sacramento. Hopefully no one will check to make sure he actually traveled from Davis to Sacramento before getting on the bus to Truckee.

There must be some profound lesson here. I would love to have been a fly on the wall during the floor debate in the state legislature when this law was enacted.

If you’ve received email from an attorney in the last five years, you’ve probably seen some version of a boilerplate warning/disclaimer in the message footer, indicating that the message may be privileged (or in some cases, asserting that the message is privileged!) and telling the receiver to destroy and/or return all copies if they are not the proper recipient. In the last couple of years, almost everyone has also added a statement to the effect that this email does not contain illegal tax advice (or if it does contain such advice, you shouldn’t use it!) Cumulatively, I’m sure we’ve used gigabytes if not terabytes of bandwidth attaching this text to every email sent.

My question to the world: is anyone aware of such an email disclaimer ever being enforced or held enforceable?

Highly newsworthy: Larry Lessig is changing channels.

Via Jason, my brilliant former Constitutional Law professor Wendy Parmet weighs in on the XDR-TB scare. Unlike most coverage, Professor Parmet brings out the big picture of how the incident fits into a larger flawed public health policy:

…It is trite but true that in America we admire individual self-sufficiency and rugged individualism. Not only do we admire this “taking care of number 1” attitude, but public health has encouraged it. Over the last several decades, public health has emphasized the role that individuals can and should play in determining their own health. Indeed, every day of week, we are bombarded with messages about how we can do this or that to take care of ourselves. Sometimes the message extends to what we can do for our families. Seldom are we told what or how we can do for unnamed others.

Even infectious disease policies perpetuate this myth of self-control. We are told to vaccinate our children to protect them. We are told to help ourselves by getting a flu shot. And the federal government provides us with information about how we should prepare to help ourselves and our family in the event of an influenza pandemic.

This “privatization” of infectious disease control is even evident in the U.S. approach to quarantine. During the SARS epidemic, governments in Canada and in Asia quickly realized that quarantines would not be effective without income protection. So laws were passed to assure that people would receive compensation while under quarantine. In the United States, in contrast, despite all the efforts that have been made at public health preparedness and public health law modernization, income replacement remains off the table (the Family and Medical Leave Act only guarantees unpaid leaves for some ill employees). Perhaps even more astonishingly, in its proposed quarantine regulations, the CDC failed to ensure that it would provide all necessary health care to those it quarantined. …

Not to be missed: well-known enfant terrible James Grimmelmann is guest-blogging on PrawfsBlawg. His opening commentary on the relationship between law practice and computer science:

Practicing lawyers, like practicing programmers, are professional pragmatists. Both must make their cases (and case mods) out of the materials they have available; both starve or eat steak depending on whether their creations work. The day-to-day practice of law is unlikely ever to require much high theory. We can mourn that fact because it means that they look at us with suspicion, or celebrate it because it frees us to chase Truth and Beauty—and it will remain a fact either way.

Aside from the fact that I don’t eat steak, I think this is correct.

Via a commenter on James’ entry, I learned that the 7th Circuit Court of Appeals is implementing a wiki (the entry page could surely use some more content). Surprisingly, it was not Posner but Easterbrook who spearheaded the effort. This is a very interesting development, but I expect it will be quite a while before any other circuit takes up the idea.

Finally, I have been meaning to write about this New York Times story describing Jonathan Coulton’s success as a musician breaking with the traditional distribution /promotional channels (via 43 folders, a productivity blog that is still on my “probation” list). Unfortunately, slashdot beat me to it. I first re-discovered Jonathan Coulton during his guest episode of the Show with Ze Frank. In any event, the article is well worth reading:

More than 3,000 people, on average, were visiting his site every day, and his most popular songs were being downloaded as many as 500,000 times; he was making what he described as “a reasonable middle-class living” — between $3,000 and $5,000 a month — by selling CDs and digital downloads of his work on iTunes and on his own site…

Coulton realized he could simply poll his existing online audience members, find out where they lived and stage a tactical strike on any town with more than 100 fans, the point at which he’d be likely to make $1,000 for a concert. It is a flash-mob approach to touring: he parachutes into out-of-the-way towns like Ardmore, Pa., where he recently played to a sold-out club of 140….

In total, 41 percent of Coulton’s income is from digital-music sales, three-quarters of which are sold directly off his own Web site. Another 29 percent of his income is from CD sales; 18 percent is from ticket sales for his live shows. The final 11 percent comes from T-shirts, often bought online…

As usual, Ed Felten offers a well-conceived analysis of the Cablevision decision from a technologist’s perspective (for a lawyer’s perspective, see William Patry). The money quote:

The question, in other words, was who was recording the programming. Was Cablevision doing the recording, or were its customers doing the recording? The customers, by using their remote controls to navigate through on-screen menus, directed the technology to record certain programs, and controlled the playback. But the equipment that carried out those commands was owned by Cablevision and (mostly) located in Cablevision buildings. So who was doing the recording? The question doesn’t have a simple answer that I can see.

This general issue of who is responsible for the actions of complex computer systems crops up surprisingly often in law and policy disputes. There doesn’t seem to be a coherent theory about it, which is too bad, because it will only become more important as systems get more complicated and more tightly intereconnected.

Agency, intent/scienter, and responsibility are indeed tricky issues with software and the law. I’ve experienced the problem in my own practice. Although it arises particularly frequently in copyright disputes, it is also common in patent and trademark cases (and of course contract disputes inasmuch as clickwrap-type agreements are implicated). I don’t have any coherent theory to propose, but a more uniform framework would certainly introduce some predictability into these sorts of cases (and thus perhaps avoid litigation).

Update: Mike Madison also has some interesting comments on the case.

The Children’s Online Protection Act, or COPA, requires website operators who provide commercial material that could be “harmful to minors” to verify their users’ age, for example, with a credit card. The statute was immediately challenged as unconstitutional under the First Amendment. A preliminary injunction against enforcement of the law was upheld by the Supreme Court, which remanded the matter for factual development as to whether filters could accomplish the same purpose while interfering less with free speech. (Ironically, the ACLU found itself in the unusual position of arguing for Internet filters in this case.)

It was just about one year ago that the Government sought to enforce a subpoena against Google for records of user queries and URLs stored in Google’s database. The court granted the motion with respect to stored URLs but not queries in Gonzales v. Google. It was never quite clear what the Government would really do with the data or why they pushed so hard to get it after receiving what they needed from other search providers. (The U.S. apparently argued Google’s search results would “add luster” to its analysis).

In any case, the statute has now finally been held unconstitutional. As Ed Felten insightfully points out, unlike in previous instances where courts have struck down Internet speech regulation, in his opinion, Judge Reed did not provide a roadmap for Congress to try yet again to enact a law that would pass First Amendmend muster. Maybe Congress will leave the issue alone for a while:

Two things make the judge’s ruling relatively roadmap-free. First, it is based heavily on factual findings that Congress cannot change — things like the relative effectiveness of filtering and the amount of HTM material that originates overseas beyond the effective reach of U.S. law. (Filtering operates on all material, while COPA’s requirements could have been ignored by many overseas sites.) Second, the alternative it offers requires only voluntary private action, not legislation.

Congress has already passed laws requiring schools and libraries to use content filters, as a condition of getting Federal funding and with certain safeguards that are supposed to protect adult access. The courts have upheld such laws. It’s not clear what more Congress can do. Judge Reed’s filtering alternative is less restrictive because it is voluntary, so that computers that aren’t used by kids, or on which parents have other ways of protecting kids against HTM material, can get unfiltered access. An adult who wants to get HTM material will be able to get it.

Doubtless Congress will make noise about this issue in the upcoming election year. Protecting kids from the nasty Internet is too attractive politically to pass up. Expect hearings to be held and bills to be introduced; but the odds that we’ll get a new law that makes much difference seem pretty low.

Via Universal Hub, retail employee fired for blogging. This is not uncommon, but notable in that the blog had no work-related content nor, apparently, was it done on work time:

Drew started his own personal blog. On it he did not mention Mercenary, did not link to Mercenary, did not sell or offer any products or services that might be construed as competing with Mercenary. It just wasn’t about Mercenary. He didn’t even use his own name.

His boss learned about the blog when coworkers passed around the posting with the adorable photo of his newborn son. His boss then fired Drew by leaving him a voicemail that Drew picked up when he got home from the hospital.

Although my employment law is rusty, I doubt the employee has a colorable claim against his previous employer. (Private employment is generally not subject to any First Amendment protections.) Any change here is going to need to be more cultural than legal. Ten (maybe even five) years from now, I suspect people will wonder what all the fuss was about.

(Some have suggested that the blogger was actually fired for having a baby. If that is true, it likely would be actionable.)

[tags] Blogging, Employment, Free Speech[/tags]

PCWorld provides a list of the 50 most important people on the web. Topping the list, unsurprisingly, are Eric Schmidt, Larry Page, and Sergey Brin. Other usual suspects include Steve Jobs, Bram Cohen, Jimmy Wales, Bruce Schneier, and Craig Newmark.

I was disappointed that there wasn’t a single practicing attorney on the entire list. The closest they got is Larry Lessig, who is admittedly a lawyer of sorts, but at least in my mind more of an academic. A couple of others appear to be former lawyers.

I’d like to think we lawyers can make enough of a positive difference to be “important.” The optimistic view might be that practicing attorneys need to keep a lower profile on the sorts of issues that attract PCWorld and the like and are thus unlikely to be recognized publicly. The pessimistic view is that the technologists and business people just matter a lot more.

I recently came across two old and unrelated writings about law, both of which are worth reading, especially for people with strong opinions but no formal training.

The first is this piece, entitled Seven Ways in Which Code Equals Law (And One in Which It Does Not), by recently-appointed New York Law School professor James Grimmelmann and EFF Legal Director Cindy Cohn. Several observations are particularly appropriate for the slashdot crowd (and, to a lesser extent, certain members of the Debian community and others who grew up on a diet of BASIC, Pascal, and then C and later perl). I especially like this bit about “hacking the law”:

Some people, seeing this connection, and remembering the values of good code, try to improve the legal system by treating it as a computer. People come to me with ideas for hacking the law. “The government says that cryptography is a weapon,” they say, “but the Bill of Rights says we have the right to bear arms. So that means we have a Constitutional right to use cryptography.”

But the legal system isn’t a computer. If you can’t convince a judge that what you’re proposing is consistent with the values underlying a law, your argument will go nowhere. People go to jail every year because they think they’ve found a way to hack the Sixteenth Amendment. “The income tax is illegal,” they say, or, “The income tax is voluntary, see, it says so right here,” and then they get convicted of tax evasion and sent to jail. We did convince several judges about the Constitutional dimension of cryptography, but the claim started from the values of the First Amendment, not a mechanical reading of its words.

It’s a category mistake to treat the legal system as just another architecture with its own specialized language. Code and law are different ways of regulating; they have different textures. All of those people who are required to make the legal system work leave their mark on its outcomes: they make a certain amount of drift and discretion almost inevitable. Code doesn’t have such a limit: it can make perfectly hard-nosed bright-line rules and hold everyone in the world to them. Code is capable of a kind of regulatory clarity and intensity that law can only state, never really achieve.

I don’t entirely agree with the other article, entitled What I Ate For Breakfast and Other Mysteries of Judicial Decision Making by outspoken Ninth Circuit Judge Alex Kozinski (unofficial site maintained by Aaron Swartz, wikipedia entry). For example, I think critical legal studies has resulted in some interesting insights, some of which actually have practical applciation. Still, Judge Kozinski makes an important point about the numerous factors that act as a check on discretion in judicial decisionmaking:

It is popular in some circles to suppose that judicial decision making can be explained largely by frivolous factors, perhaps for example the relationship between what judges eat and what they decide. Answering questions about such relationships is quite simple – it is like being asked to write a scholarly essay on the snakes of Ireland: There are none.

But as far back as I can remember in law school, the notion was advanced with some vigor that judicial decision making is a farce. Under this theory, what judges do is glance at a case and decide who should win – and they do this on the basis of their digestion (or how they slept the night before or some other variety of personal factors). If the judge has a good breakfast and a good night’s sleep, he might feel lenient and jolly, and sympathize with the downtrodden. If he had indigestion or a bad night’s sleep, he might be a grouch and take it out on the litigants. Of course, even judges can’t make both sides lose; I know, I’ve tried. So a grouchy mood, the theory went, is likely to cause the judge to take it out on the litigant he least identifies with, usually the guy who got run over by the railroad or is being foreclosed on by the bank. This theory immodestly called itself Legal Realism.

Just to prove that even the silliest idea can be pursued to its illogical conclusion, Legal Realism spawned Critical Legal Studies. As I understand this so-called theory, the notion is that because legal rules don’t mean much anyway, and judges can reach any result they wish by invoking the right incantation, they should engraft their own political philosophy onto the decision-making process and use their power to change the way our society works. So, if you accept that what a judge has for breakfast affects his decisions that day, judges should be encouraged to have a consistent diet so their decisions will consistently favor one set of litigants over the other.

I am here to tell you that this is all horse manure. And, like all horse manure, it contains little seeds of truth from which tiny birds can take intellectual nourishment. The little truths are these: Under our law judges do in fact have considerable discretion in certain of their decisions: making findings of fact, interpreting language in the Constitution, statutes and regulations; determining whether officials of the executive branch have abused their discretion; and, fashioning remedies for violations of the law, including fairly sweeping powers to grant injunctive relief. The larger reality, however, is that judges exercise their powers subject to very significant constraints. They simply can’t do anything they well please.

Finally, I will link, but not embed, this video of the Anna Nicole Smith court order, for an entirely different perspective on the legal process. You almost don’t really want to have to see this stuff.