May It Please The Court
Quote of the Day - For a list of all the ways technology has failed to improve the quality of life, please press three.
Where, Oh Where Has Our Privacy Gone?
How has technology affected your privacy? Can you tell? The Electronic Frontier Foundation can. They've cracked a code of practically invisible yellow dots applied to paper printed on color printers. The code was created by government and printer manufacturers and designed to thwart counterfeiters. But it does much more. Those that know the code can identify the very printer used to print each piece of paper and where and when you printed the page. While it may have application only to counterfeiters, it also has many other uses.
Cell phones, likewise, now broadcast your location if you dial 911, and those with the sophisticated equipment necessary can also track your whereabouts. It's quite similar to the technology applied to monitor trucks as they move (or don't move) across the country.
Laptops, too. Connect one to the internet, and the owner can find out exactly where it's located if it's been stolen. Or used by one of your employees. It's called LoJack laptop. In-office computers can be monitored, with screen snapshots taken practically every second and recorded for viewing later.
What about your television habits? Yes, those too, especially since your laptop/PVP can connect with your TIVO to allow you to watch TV wherever you may be. We've all watched enough crime shows to know that tracking telephone calls is passe' to the point we don't give it any thought. Software is serialized and it identifies itself (along with the number of times that you've installed it) directly to the manufacturer over the internet.
Is nothing sacred? What laws protect the use of this information? According to the EFF, none so far. Do we need any, or are there just too many numbers to worry about?
Senator Wrongly Contends Bloggers Aren't Journalists
Senator John Cornyn has taken the position in response to the pending Free Flow of Information Act that bloggers are not journalists. He claims, "The relative anonymity afforded to bloggers, coupled with a lack of accountability, as they are not your typical brick-and-mortar reporters who answer to an editor or publisher, also has the risk of creating a certain irresponsibility when it comes to accurately reporting information," in his statement to the Senate Judiciary Committee, repeating comments made earlier.
While MIPTC rarely takes an affirmative position on an issue, Senator Cornyn is for the most part wrong. He may be the co-sponsor of this bill with Senator Patrick Leahy, which entitles him to state what he thinks his bill means, but his proposal misses the mark. Certainly there is some merit in limiting the application of this law to anonymous bloggers, just as there would be to limiting the application to an anonymous journalist. That limitation, however, is the extent of the validity of his comment.
The notion that bloggers don't deserve protection under a shield law because bloggers don't report to editors - and thus risk inaccurate information - shows that the Senator hasn't read the news lately. Even the Grey Lady makes mistakes on important, national issues, even with the benefit of high-profile, long-in-the-tooth editors. In fact, the evidence is quite the opposite. Bloggers collectively edit each other, a more powerful tool than a single editor.
Searches on Technorati report that this issue hasn't significantly made its way into the blogosphere. Perhaps it's time we give some thought to this issue. Compare our relative lack of involvement on this point to the issue surrounding the Indian Institute of Planning and Management's firing of blogger Sabinis because of a critical post on the IIPM. Then, according to MSNBC (scroll down to second post, but first read the post on Cornyn's take on pork funding), "Sabnis told fellow blogger Amit Varma, 'You know, we bloggers are always writing about principles, about freedom of speech, about standing up for what we believe in, for the truth. It's very easy to write all that. But I'm being tested on those principles in real life. If I don't stand by those principles now, I will lose all respect for myself.' " Some 900 posts later, the IIPM has lived to regret taking on the blogging community.
William Safire has it right, as noted in the second C|Net link above, "I don't think journalism should profess to be a profession. I think the lonely pamphleteer has the same rights as The New York Times."
California Recreational Use Statute Protects Homeowners
Can a dollar make you liable? In a"slip and fall" case involving a horse and its rider, the answer is both yes and no. Let me explain why. In the Rancho Santa Fe area of Northern San Deigo County, there are some forty miles of public horse trails, and portions of those trails cross easements given to private homeowners to build and maintain driveways across those trails to access their homes.
Homeowners Janice and Jeffrey Weitzman resurfaced their driveway, ultimately making it more slippery for horse riders, and after one horse slipped and fell, the RSF Association, as part of its responsibility to maintain the trails, put warning signs up on either side of the homeowners' driveway. The Weitzmans, apparently not horse riders, claimed they did not know why the Association put up the signs, although it's not a matter of rocket science.
Add into this mix rider Marilyn Miller, who paid dues to her riding club, which in turn paid some of those dues to the Association to help maintain the forty miles of trails. The Weitzmans were not paid. In addition to the maintenance fees, Ms Miller's riding club paid $1.00 / year to rent space where the riding club's stables were located. So, it's not really a dollar at issue, but the maintenance fees as well.
As you've likely figured out by now, Ms. Miller's horse slipped and fell on the Weitzmans' driveway, injuring her. In turn, she sued both the Association and the Weitzmans. Section 846 of the California Civil Code provides recreational immunity to homeowners from individuals who access their property for recreational purposes. Unless the individual pays for the access, the immunity attaches as long as the homeowners did not willfully or maliciously fail to warn the individual about a hazard.
So here, Ms. Miller was not successful in her case against the Weitzmans, but did recover from the Association, despite the warning signs. As far as the Weitzmans are concerned, the jury's decision makes sense. Between the Association and Ms. Miller, however, the jury assessed forty percent of the liability to Ms. Miller's own negligence, and sixty percent to the Association.
How-to Guide For Handling Derivative And Class-action Corporate Suits
If you're involved in either a shareholder class action suit or a derivative suit, there's a good primer available on how to handle them if you're on the corporate side, and how not to, if you're on the plaintiff's side. In the just-decided case of Grosset v. Weenas, a plaintiff made the mistake of selling his stock and trying to maintain a derivative action, which the Court disallowed based on the continuous-ownership doctrine.
It's the old "if you want to play, you have to pay" rule. At least in Delaware, where this company was incorporated, that's the rule. If you want to maintain a derivative action against the corporation, then you better own stock in the corporation during the entire time that you're suing the corporation. In California, where the suit was brought, that rule will now be accorded the same respect. This case, along with the related cases, gives both sides a pretty good idea of how tactics in these actions work out.
Our case, Grosset, was actually a piggy-back case, riding the coattails of the separate, but original, class-action lawsuit filed in New York that challenged the corporation's directors because the stock dropped from $126/share to $10/share, and alleged the directors sold their shares for a preferential profit. The piggy-back aspect of the case occurred when one of the shareholders, independent of the class-action suit against the corporation, brought a separate derivative suit against the directors of the corporation.
The whole mess initially attracted a lot of attention. Even so, the class-action case was dismissed, but is now on appeal in the Ninth Circuit. After that dismissal, the corporation merged with another corporation, and purchased the shares of the derivative shareholder. The derivative shareholder was dismissed from the suit, but the court allowed a substitute shareholder to maintain the derivative action. The merger would prove to be the undoing of the derivative action.
That's when the corporation got smart. It formed a special litigation committee (see page 18) and hired a retired judge and a retired admiral to investigate the claims With the assistance of a separate attorney and after reviewing thousands of pages of documents and interviewing hundreds of witnesses, the SLC issued a sixty-four page report finding that there had been no misdeeds relating to the directors' sale of stock, the sharp price fall of the value of the stock or representations in the corporation's securities filings.
The independence of the two members of the SLC, along with their independent counsel, gave the Grosset Court the "business judgment rule" confidence to dismiss the derivative action, although the Court hung its "opinion hat" on the hook labeled "standing." Once the derivative shareholder's stock was repurchased in the merger, he lost his continuous ownership of stock, and along with it, his standing to sue the corporation.
In legal terms, that's "point, set, match."
Trademark Infringement Claim Rides Off Into The Sunset
A horse is a horse, of course, of course, unless the horse is the famous ... polo pony? To analogize an old television show (link has sound) if you will forgive me, that's essentially the decision of this New York jury, as reported by the Associated Press.
You have likely seen Ralph Lauren's polo pony on preppy shirts, especially if you live on the right coast. (Out here on the left coast, we are not so much a slave to fashion, where the logos are not nearly as popular.) The U.S. Polo Association wanted to use the logo of a polo pony for their Jordache shirts, but when they did, Polo Ralph Lauren sued for trademark infringement. On the USPA site, if you click on this link, you get a disclaimer that the USPA is not affiliated with Ralph Lauren, but that warning apparently didn't satisfy the large merchandiser.
Just yesterday, the jury found that three of four of the USPA/Jordache shirts did not infringe Ralph Lauren's design. The Polo Association declared a victory, and Ralph Lauren will now decide whether to appeal the decision after its defeat and get back on that horse and ride.
New Sentencing Guidelines To Be Applied To Convicted P2P File Swapper
File swapping just became more dangerous. Upon conviction, offenders can now be sentenced based on the volume of files illegally swapped, and that volume can be based on an "estimate." Within the guidelines, it's possible for judges to impose fines of up to $250,000 and prison terms of up to three years.
The first application of these new sentencing guidelines may come in the case of 19-year old Curtis Salisbury, who plead guilty to copying two movies and then distributing them on the internet. The sentencing guidelines under the Family Entertainment and Copyright Act allow for punishment to be based on the estimated number of uploads of the movie files, as well.
Coast To Coast Internet Radio Program On Bankruptcy Abuse and Consumer ProtectionThe new Coast to Coast internet radio program, with my co-host Robert Ambrogi, discusses the new Bankruptcy Abuse and Consumer Protection Act of 2005. We take up the discussion of this new bankruptcy law that has both the bankruptcy courts and bankruptcy attorneys' offices swamped. Our special guests are Attorney Henry Sommer, a leading authority on consumer bankruptcy and Editor-in-Chief of Collier on Bankruptcy from Philadelphia and Attorney R. Gibson Pagter, Jr. a bankruptcy lawyer from the firm Pagter and Miller, APLC, of Santa Ana, California. Join us as we sort through the first major revision in U-S bankruptcy law in a quarter century. Click on the podcast icon below, or download it from MIPTC's podcast RSS feed.
Rating Violent Video Games May Become Do It Yourself
Just as soon as a law gets passed, it gets challenged - and it hasn't even taken effect yet. May It Please The Court warned you last week this challenge would be filed. The video game industry attacked the new law, scheduled to become effective on January 1, 2006, prohibiting the sale of violent video games to minors.
Two industry groups, the Video Software Dealers Association and the Entertainment Software Association joined forces to overturn the statute because they believe it amounts to censorship. According to the ESA's site, President Dan Lowenstein said, "It is not up to any industry or the government to set standards for what kids can see or do; that is the role of parents. Additionally, everyone involved with this misguided law has known from the start that it is an unconstitutional infringement on the First Amendment freedoms of those who create and sell video games."
Not all agree that it's a First Amendment issue.
The Parents Television Council instead applauded the new law and said, "Medical research, specifically a recent study published in the Journal of Adolescence, shows that these games cause aggressive and hostile behavior in children. Such a simple, commonsense solution such as this law protects our children without interfering with the rights of adults."
No matter what your perspective, you can go to the Entertainment Software Rating Board site and get ratings on the games and make your own decision while this battle is played out in the courts.