I’ve been asked about the legal significance of the various “declarations” filed in the case. As long as I’m answering, I thought I might as well answer publicly.

In short, a declaration, as a document filed with a court, is just evidence. It’s presented so that the evidence is available to the court. The key word is “available.” It’s subject to the other rules governing the receipt of evidence: e.g., there must be a reason to believe the author actually has knowledge of what she says, the fact-finder might decide not to believe what she says, and so on. But assuming it gets past those other hurdles, the court can use the facts the author asserts in support of its decision. Like testimony in court or physical exhibits, a declaration provides evidentiary support.

You also can’t generally just make up stuff and put it in a declaration. The author typically signs it on oath under penalty of perjury, and the lawyer submitting it takes responsibility for not knowingly presenting falsehoods to the court.

• Link to generic movie trailer
• Apology for posting twice about the same TV news parody
• Tribute to the song that introduced me to the concept

Question to blog readers inquiring about similar examples for other media.

Obligatory credit to Metafilter.

The paper version of my talk from Denver University’s Cyber Civil Rights symposium in November is now online, along with the other conference essays. I’m very happy with how this one came out: while the paper may have started its life as a deliberate provocation, it now makes a quite serious argument about the uses and abuses of civil procedure in dealing with online abuse. It’s called The Unmasking Option, you can get it in PDF and HTML versions, and here’s the abstract:

In the recent “Skanks in NYC” case, the plaintiff dropped her defamation lawsuit once the court had unmasked the John Doe defendant. Although the plaintiff was criticized for her seemingly pretextual use of a lawsuit, the outcome was substantively just. The harasser got almost exactly what she deserved for trying to humiliate her victim: embarrassment of her own.

This brief essay discusses a counterintuitive proposal inspired by the Skanks in NYC case: that the law unmask anonymous online harassers as a substitute for litigation, rather than as an aid to it. Identifying harassers can be an effective way of holding them accountable, while causing less of a chilling effect on socially valuable speech than liability would. While the proposal itself is probably unworkable, decoupling anonymity from liability enables us to understand more clearly what’s at stake with each.

While you’re at it, check out the other essays, too. Our hosts at Denver put together an outstanding program, and the presentations fit together remarkably well. I particularly recommend Mary Anne Franks’s The Banality of Cyber Discrimination, or, The Eternal Recurrence of September, which is one of the best-written and best-argued pieces of legal scholarship I’ve read in quite some time. Franks is a rising young academic star, and her piece makes it quite clear why.

Smart essay, although I don’t think the distinction between Formless and Definite Content entirely holds up. Even Formless Content acquires a shape by virtue of being poured into a particular container. Holding a book in my hand and thumbing through it, I can acquire a subconscious sense of where particular passages are based on how their text flows and whether more of the weight is on the left or the right. The first e-book application to provide affordances that can supply that subconscious sense (or supplant it with something even better) will be the true turning point in the revolution that shifts Formless Content to purely digital platforms.

Jonathan Band has already detailed the long and winding road to the Google Books settlement. Now, with the Library Copyright Alliance, he’s back to chart the many possible paths forward. It’s a one-page PDF diagram, designed by Tricia Donovan of ARL, which provides a flowchart of how the settlement could go from here as it bounces around among the court, the parties, and possible appeals. The bottom line: “In short, the precise way forward is more difficult to predict than the NCAA tournament.”

Always a good thing, but recently more so than ever.

In my academic paper, I say “knock-down argument.”

In my blog post, I say “one-hit kill.”

The Supreme Court today decided case No. 08-103, Reed Elsevier v. Muchnick. In an 8-0 opinion by Justice Thomas, the Court held that § 411(a) of the Copyright Act, which requires registration before filing suit (for United States works) is not a “jurisdictional” limit. Thus, the district court had subject-matter jurisdiction to approve a class-action settlement that included plaintiffs who hadn’t registered their copyrights.

I approve of the result, for reasons I laid out in a blog post a year ago. The “jurisdictional” theory just doesn’t make sense in terms of the policies of copyright: it keeps some important claims (such as declaratory judgment actions by defendants) that ought to be in court out. I would have preferred that the Supreme Court address these copyright-policy issues; instead, it focused on its precedents on jurisdictional and non-jurisdictional statutory elements. That’s understandable, though; the Court wanted to give guidance to the other federal courts on a wider range of issues, not just copyright ones. And since § 411(a) was drafted reasonably, applying the general rule leads to the right result in this case.

This decision has some implications for the Google Books settlement. Most notably, the settlement class was defined to avoid this problem: it excluded the owners of unregistered United States works. Now that the Supreme Court has spoken, that move turns out to have been unnecessary: the settlement class could have included them. I doubt they’ll be added back in, though: the settlement would essentially have to be rebooted for the settlement class to be expanded that much. Moreover, it’s now clear that there are other factors constraining the size of the class, such as the notice issues and the treatment of foreign copyright owners.

C.E. Petit thinks the new decision makes the settlement “legally untenable.” I don’t think this is a one-hit kill; a settlement class is not required to be the absolute largest it could possibly be. I do, however, expect a small flurry of briefing on this issue, as the Supreme Court’s decision is clearly relevant, controlling authority.

Other commentary: Civil Procedure and Federal Courts Blog; Irv Muchnick.

We’ve posted another opt-out letter over at the Public Index, this one sent by frequent Lab commenter Douglas Fevens. It appears that opt-out letters mailed directly to the court, while apparently received, are not being scanned and posted to the official docket. If you or someone you know opted out, sent a letter to the court informing it of this fact, and would like it posted to the Public Index, please send it along.

Multiple people have sent me a link to this story about a professor suspended for comments on Facebook. Perhaps a majority of social-network-site privacy stories I come across now involve discipline against teachers or students for saying allegedly disruptive things online. This tells us something, I think, about the school as a leading edge of the modern surveillance society.

In non-Google news, I’ve just uploaded a draft of my latest paper, Privacy as Product Safety. I’ve been giving presentations on what I call the “Myths of Privacy on Facebook” and when I was invited to present at a symposium on Internet expression at Widener University, I decided to expand the presentation into a real essay. It’s forthcoming in the Widener Law Journal’s June issue, and the new twist is that I draw a parallel between the privacy problems facing users of Facebook and other social software with the problems of product safety facing consumers. Here’s the abstract:

Online social media confound many of our familiar expectaitons about privacy. Contrary to popular myth, users of social software like Facebook do care about privacy, deserve it, and have trouble securing it for themselves. Moreover, traditional database-focused privacy regulations on the Fair Information Practices model, while often worthwhile, fail to engage with the distinctively social aspects of these online services.

Instead, online privacy law should take inspiration from a perhaps surprising quarter: product-safety law. A web site that directs users’ personal information in ways they don’t expect is a defectively designed product, and many concepts from products liability law could usefully be applied to the structurally similar problem of privacy in social software. After setting the scene with a discussion of how people use Facebook and why standard assumptions about privacy and privacy law fail, this essay examines the parallel between physically safe products and privacy-safe social software. It illustrates the value of the product-safety approach by considering another ripped-from-the-headlines example: Google Buzz.

Comments are enthusiastically welcomed.

The Electronic Frontier Foundation has two blog posts that run through the numbers on the settlement in a very clear fashion. As an added bonus, the EFF politely asked for a clearer version of the page which had the tables of the number of claimed books by various categories, and Rust Consulting (by way of Google), politely obliged with a much clearer version.