Thanks to Denise for the mention of this law blog by Howard Bashman, which is called How Appealing and is devoted to appellate practice. He's the head of the appellate practice section of a large law firm. He's written a great article on the impact of technology on appellate law practice. I'm adding his site to my blog roll, although I wish it was an XML/RSS feed. Sigh!
11:41:37 PM
A Cowboy's guide to in-house lawyers who manage litigation
Gems like "Always drink upstream of the herd" and "Never kick a fresh turd on a hot day." [Law.com]
U.S. District Judge Ronald M. Whyte said the Digital Millennium Copyright Act (DMCA) doesn't violate the Constitution when it limits software designed to circumvent electronic copyright protection methods.
Dan Gillmor says "the judge's rationale on fair use would be laughable if it weren't so cynical. You're free to quote from things if you re-type or use a pen, apparently, but you're not free to quote from music or video, apparently. What century does this guy live in?" [Dan Gillmor's eJournal]
Reports from SiliconValley.com note that "tThe law does not prevent consumers from making limited copies of electronic content traditionally allowed by law, such as quoting from a work or comparing text for study or criticism, Whyte said. But, he added, ``quoting may have to occur the old-fashioned way, by hand or by re-typing, rather than by `cutting and pasting' from existing digital media. Nevertheless, the fair use is still available.''
This is another one of those cases that I would like to study more closely. I am concerned about this case, but I'm not sure I'm ready to brand it a bellweather decision that heralds some sort of impending doom of free speech. Here's what it looks like to me:
There was a hasty prosecution of the Russian programmer probably because of some pressure from Adobe, later diminished and the result was that charges against the person were dropped.
Now the company is the focus of the criminal charges, which is always strange (i.e. to charge a company with criminal wrongdoing)
Trial judges are always reluctant to make sweeping pronoucements that federal laws are unconstitutional (which believe it or not is actually a good thing for reasons that I won't get into)
The case will almost certainly wind up in an appeal court, but even if it doesn't it's just the opinion of a federal trial court, which is not entitled to that much weight.
So, all in all, I wouldn't get that worked up about it. The trial judge is probably thinking about a lot of practical considerations having to do with the trial, and he isn't focused on the DMCA in the way that the rest of us are. I'm not saying that I agree with the prosecution. I don't. I think that the tension between the DMCA and free speech is real and will have to be resolved, but it isn't going to be definitively resolved by a trial judge. That's what appeals courts are for. So I think it's a mistake to invest this decision with too much meaning.
A case related to the 1996 bombing in Atlanta's Centennial Olympic Park has landed before the U.S. Supreme Court. Richard Jewell, who was investigated and then cleared of any involvement in the bombing, has petitioned the Court to review the Georgia Court of Appeals' ruling that holds him to be a public figure for the purposes of his libel suit against The Atlanta Journal-Constitution. [Law.com]
I'll be interested in this. How can he be a public figure? He wasn't famous until he was accused and if that's how he became famous it sounds like a boot-strap deal.
Almost five years after the tobacco industry agreed to pay $300 million to start a research foundation to settle a landmark suit brought on behalf of thousands of flight attendants, the new Flight Attendant Medical Research Institute has selected its first grant recipients. The nonprofit foundation is expected to fund grants totaling $20 million to both individuals and organizations. [Law.com]
Medical monitoring benefits aren't taxable, the Internal Revenue Service held in a private letter ruling in response to a request from lawyers handling the massive fen-phen settlement. [Law.com]
"Fresh from its transition to an electronic filing system, the U.S. Patent and Trademark Office is embarking upon a controversial plan to dispose of an estimated 135 million documents - literally tons of paper - chronicling more than 200 years of innovation.
Faced with more than 6,000 patent and trademark applications each week, the agency is moving to an electronic document system to reduce costs and to tackle a backlog of filings.
Currently, just over 30 percent of trademark applications are filed electronically, though the agency will require e-filing for all trademarks by 2004. The PTO is also considering a similar mandate for patent applications.
700 patent examiners were hired this year. The agency plans to hire another 950 examiners in 2003 - provided Congress approves the Bush administration's latest budget request." [Newsbytes] via [The Shifted Librarian]
More and more government agencies and courts are moving to electronic filing. The local bankruptcy court here in New Orleans just instituted that requirement. Lawyers who want to file in the Eastern District have to have Adobe Acrobat (the full version) and have to know how to create PDFs and submit them. It's not hard, but to many people it's a completely foreign concept. People in our generation like paper because its three-dimensional qualities are easy to deal with.
Malcom Gladwell (of The Tipping Point fame) wrote a piece about the unsung qualities of paper in the New Yorker recently, and my friend Greg passed it on to me. Then we discussed it. Greg likes Gladwell's piece. I did too, but it misses the point. Digital information is easier to store, distill, transmit, re-broadcast (read: multi-cast) etc. But, like I said, our generation has trouble with digital information.
It's like a person who has never heard before, and then is given a cochlear implant. If it happens after a certain age the brain doesn't know how to process the signals. That's how it is for us. Our brains have trouble with information that is not 3-D. Our kids won't have that problem. Their experience is totally different: lots of computer screens, Nintendo, X-Box and so forth. They'll laugh at our reluctance to see the inherent value of digital information.
Old people die. Why? Because the human race needs progress, and progress implies change. As the brain gets older it can't adapt to the new stimuli. Death is nature's way of ordering new equipment that can deal with the new software requirements....
An environmental group has sued to get warning labels slapped on chocolate products that caution sweet tooths about potentially hazardous levels of lead and cadmium. The nonprofit American Environmental Safety Institute alleges products made by Hershey Foods Corp., Nestle USA Inc., Kraft Foods North America Inc. and other manufacturers expose consumers -- especially children -- to potentially dangerous levels of the metals. [ CNN ] [via MyFreePress.com]
Hey, if got an idea: let's put labels on everything. I'm sure that when everything is labelled people will read all of the labels no matter how long it takes.
It reminds my of my college days when I had to borrow my philosophy teacher's book on Husserl (because the book had been sold out at the campus bookstore). He told me to be very careful with it because he had underlined the parts that he thought were important and if it got lost he would have trouble recreating his notes.
After he gave me the book, I opened it up and there were no notes. Just yellow highlighting. But every single word in the book was highlighted. It's just a funny story about a quirky professor but it illustrates an important point: when everything is important then there is no distinction between the information, and so it is with warnings. You can't issue too many warnings because after a while people ignore all warnings. It's a signal-to-noise ratio thing, so it's not something that lawyers or politician inherently understand, and that's too bad....
A House subcommittee approved legislation that would criminalize the distribution of images that have been digitally "morphed" to look like child pornography. By voice vote, the Judiciary Committee's Crime Subcommittee passed the "Child Obscenity and Pornography Prevention Act of 2002." [GigaLaw]
I'm not in favor of pornography, and I find the whole idea of child pornography revolting. But there is something unsettling about this law. I'll have to think more about it to figure out why it bothers me, but it has to do with the fact that the law is criminalizing a pure expression - even though there is no child involved. I guess the rationale is that the representation of child pornography is inherently bad. But where's the dividing line between an expression that "looks like" child porn, and one that doesn't?
That makes me think of the Potter Stewart line (What's pornography? "I know it when I see it"). And that's I guess what the standard is going to be. But who's going to play the part of Potter Stewart? And if it's okay to ban pictures then what about literature? I'm sure there are people who will chomp at the bit to use such expand the law to challenge and then challenge the publication of a book like "Lolita." I don't know. Obviously child pornography is bad, and it would be nice if this law help minimize the problem. But I think there are some other problems that will surface too. Maybe it's worth it, but it doesn't seem to fit with this country's historically strong protection of free expression. Like I said, I'll have to think about it some more....
