Singularity

In a recent filing with a federal court in Minnesota, the Motion Picture Association of America (MPAA) asserts that it should be permitted to recover up to $150,000 per copyrighted movie allegedly traded online using P2P file sharing without having to prove that anyone actually made a copy of that movie. That is in accord with the position taken by the Recording Industry Association of America (RIAA) with regard to music files.

To allow such an absurd claim to prevail would be to overrule hundreds of years of jurisprudence. Read more

The blogosphere has been afire about actions taken by Associated Press (AP) against the Drudge Retort last week. According to reports, AP sent a series of DMCA take down notices to the Drudge Retort demanding that the blog remove six items (including one user comment) that quoted AP headlines or snippets of content from AP reports with links to the full AP stories – alleging that such uses constituted copyright infringement. “AP considers taking the headline and lede of a story without a proper license to be an infringement of its copyrights, and additionally constitutes ‘hot news’ misappropriation,” an AP spokesperson said in the letter.

According to published reports, the items identified in the DMCA notices contained between 33 and 79 words of the referenced AP stories and five of the six news stories were topped by headlines written by the blog user, not the actual AP headlines. Such postings are standard fare with blogs, and are generally considered to be appropriate, since it drives traffic to the linked sites (which often make money by selling ad space with prices based on the number of visitors to the site).

“We are trying to protect our intellectual property online, as most news and content creators are around the world. But our interests in that regard extend only to instances that go beyond brief references and direct links to our coverage,” said Jim Kennedy, director of strategy for AP. “We get concerned, however, when we feel the use is more reproduction than reference, or when others are encouraged to cut and paste. That’s not good for original content creators; nor is it consistent with the link-based culture of the internet that bloggers have cultivated so well,” he said. Kennedy conceded in an article in the The New York Times that the company’s action had been “heavy handed.” Read more

We have reached another milestone on the development of the IT Law Wiki. It has passed 3,000 articles and is moving toward 4,000. We would like to thank everyone who has contributed to the wiki thus far, and would like to encourage others to do so as well.

If you would rather not post the materials yourself, simply email them to me at mdscott@swlaw.edu. I will arrange to have the materials “wikified” (add the appropriate links) and see that they get posted.

We also are looking for sample contracts in all areas of IT law. If you have any you would like to donate, please let me know. Thanks.

Law students (and virtually every other kind of student) is under enormous pressure to specialize sooner and sooner. While I specialized early when I was in college, today I see doing so as an enormous error.

Law students need to know a lot about a lot of different areas, not just of law, but history, business, literature, culture, languages, etc. This breadth of learning should start in college, continue through law school, and into practice.

There is a wonderful quote from Vladimir Nabokov, Russian author of Lolita (and many other works):

The more things we know the better equipped we are to understand any one thing and it is a burning pity that our lives are not long enough and not sufficiently free of annoying obstacles, to study all things with the same care and depth as the one we now devote to some favorite subject or period. And yet there is a semblance of consolation within this dismal state of affairs: in the same way as the whole universe may be completely reciprocated in the structure of an atom, . . . an intelligent and assiduous student [may] find a small replica of all knowledge in a subject he has chosen for his special research. . . . and if, upon choosing your subject, you try diligently to find out about it, if you allow yourself to be lured into the shaded lanes that lead from the main road you have chosen to the lovely and little known nooks of special knowledge, if you lovingly finger the links of the many chains that connect your subject to the past and the future and if by luck you hit upon some scrap of knowledge referring to your subject that has not yet become common knowledge, then will you know the true felicity of the great adventure of learning….

(Quoted in Vladimir Nabokov: The American Years, by Brian Boyd.)

My son is getting ready to go to college in the fall. He wants to be a lawyer, and is already trying to find classes (as a freshman) that will “better equip” him for law school. I am telling him that he needs to take a broad, liberal arts education, which will give him the breadth and depth of understanding of human culture, interaction, philosophy, society, history, etc. This will give him the grounding he needs to understand how law works in context. But I can see it is going to be a battle.

Twitter.com is a service that lets people send short messages (140 characters or less) (called “tweets”) to those who decide to “follow” them, and to receive short messages from those they choose to follow. While Twitter.com is used both for social networking and for business communications, it can also be an effective way to get real-time updates on new legal developments.

You can set up Twitter on your computer at work, or at home. I personally use an application called “Twhirl” which just sits on my desktop and receives “tweets” in real time, but there are other services as well.

More important for a lawyer, you can set up Twitter on your cellphone or PDA to receive “tweets” even when you are not in front of your computer. There are three legal microblogging services that have started on Twitter (and that I contribute to), which you may find of interest:

Internet Law microblog
Copyright Law microblog
Privacy Law microblog

Each of these microblogs sends short tweets on new developments in their area of law. Each tweet contains a short blurb and a link. There are generally no more than 3-5 tweets per day, so it shouldn’t overwhelm you with messages.

If you think one or more of these microblogs might be useful in your practice, just join Twitter.com and go to any or all of the links above and click on “follow”. It’s that simple.

The Ninth Circuit recently published its en banc decision in Fair Housing Council of San Fernando Valley v. Roommates.com LLC, 2008 WL 879293 (9th Cir. April 3, 2008). I do not intend to comment on the merits of the decision, which has been analyzed in depth here and here and here, but I want to point out a footnote which I found troubling.

In the opinion, after discussing the legislative history of Section 230 of the Communications Decency Act (which provides immunity for service providers for third party postings on their websites), Judge Kozinski says the following in footnote 15:

The dissent stresses the importance of the Internet to modern life and commerce . . . and we, of course, agree: The Internet is no longer a fragile new means of communication that could easily be smothered in the cradle by overzealous enforcement of laws and regulations applicable to brick-and-mortar businesses. Rather, it has become a dominant – perhaps the preeminent – means through which commerce is conducted. And its vast reach into the lives of millions is exactly why we must be careful not to exceed the scope of the immunity provided by Congress and thus give online businesses an unfair advantage over their real-world counterparts, which must comply with laws of general applicability.

Read more

When I meet people and tell them I specialize in technology law, they often assume that I must be an earlier adopter of every new geewhiz tech gadget that comes out. But I’m not. I believe in what I refer to as “appropriate technology,” that is, getting the technology you need and what is appropriate for the job at hand, and not getting the newest gizmo just because it is the newest gizmo. Read more

The IT Law Wiki, launched last October, has reached 2,500 articles. While that sounds like a decent amount of material, it has barely scratched the surface of IT Law. I estimate that it needs 25,000 articles (10X the current number) before it will be comprehensive — by anyone’s definition of that word. So please check it out and, if you have the time, post an article or expand an existing article.

Those lawyers who live and breathe a specialty, like IT Law, often forget that not everyone speaks their language, including judges. That isn’t to say that judges aren’t smart. Many are brilliant. But they are generalists, who hear cases on a wide variety of legal issues involving a dizzying array of businesses. Judges can be expected (in most cases) to understand the law. But it is unreasonable for advocates to expect them to understand the jargon of the industry the parties are from. A recent decision by Judge Richard Posner of the Seventh Circuit Court of Appeals brings this fact home.

In Indiana Lumbermens Mutual Ins. Co. v. Reinsurance Results, Inc., 513 F.3d 652 (7th Cir. 2008), the court was faced with a complex set of arguments revolving around the esoteric law of reinsurance. At the end of the opinion, Judge Posner made the following remarks. Substitute “computer technology” or “Internet technology” for “reinsurance” and you should get the point:

A note, finally, on advocacy in this court. The lawyers’ oral arguments were excellent. But their briefs, although well written and professionally competent, were difficult for us judges to understand because of the density of the reinsurance jargon in them. There is nothing wrong with a specialized vocabulary—for use by specialists. Federal district and circuit judges, however, with the partial exception of the judges of the court of appeals for the Federal Circuit (which is semi-specialized), are generalists. We hear very few cases involving reinsurance, and cannot possibly achieve expertise in reinsurance practices except by the happenstance of having practiced in that area before becoming a judge, as none of us has. Lawyers should understand the judges’ limited knowledge of specialized fields and choose their vocabulary accordingly. Every esoteric term used by the reinsurance industry has a counterpart in ordinary English, as we hope this opinion has demonstrated. The able lawyers who briefed and argued this case could have saved us some work and presented their positions more effectively had they done the translations from reinsurancese into everyday English themselves.

Id. at 658. The old KISS principle (“Keep it Simple, Stupid”) applies to appellate advocacy, as it does in so many other areas of law and business.