The Laboratorium
March 2010

The Mediated Life


One of my students in Internet Law, Leanne Gabinelli, wrote the following in a blog post for the class, and I thought it worth passing along:

Also, I think Facebook has also completely changed the social habits of the American Teenager. No longer do teens go to parties to see their friends — in my recent observations, teens go to parties so that photos can be taken of them partying, so that those photos can be uploaded to Facebook, so that the whole school can see that so-and-so is popular, social, cool, pretty, etc.

GBS: Denny Chin Knows How to Use Google


Reuters, A Judge May Google to Confirm Intuition: Court:

A federal appeals court said it can be acceptable for a judge to conduct an Internet search to confirm an intuition about a matter of common knowledge. …

The case concerned an Internet search performed by U.S. District Judge Denny Chin, whom President Barack Obama has nominated to fill a vacant seat on the Second Circuit.

Prosecutors alleged that Anthony Bari, who served 12 years in prison for bank robbery, violated terms of his release by robbing a Ridgewood Savings Bank branch in Bronx, New York.

Chin reviewed several pieces of evidence, including a bank surveillance video showing a robber who wore a yellow rain hat. A yellow rain hat was found in the garage of Bari’s landlord.

Noting similarities between the hats, Chin at a hearing said he resorted to Google Inc’s search engine for help. “We did a Google search,” and “one can Google yellow rain hats and find lots of different yellow rain hats,” he said. …

The court said that 20 years ago. “a trial judge may have needed to travel to a local department store to survey the rain hats on offer.

“Today, however, a judge need only take a few moments to confirm his intuition by conducting a basic Internet search,” it added. “As the cost of confirming one’s intuition decreases, we would expect to see more judges doing just that.”

Robin Milner, Was 76


His work on type theory was remarkable; Hindley-Miler type inference remains one the most elegant things I’ve ever seen. And that was only one of his many contributions to computer science.

GBS: An Introduction to Competition Concerns in the Google Books Settlement


Rudolph J.R. Peritz and Marc Miller have written a short article with a self-explanatory title: An Introduction to Competition Concerns in the Google Books Settlement. Here’s the abstract:

Google started its Google Books project in 2004 with the intent to create a digital library of the world’s books. There has not been such a grand plan since students of Aristotle began to gather the world’s knowledge in the Library of Alexandria some 24 centuries ago. The world’s knowledge has changed. And so has its political economy. Twenty-first century public policy questions have been interjected to delay and reshape Google’s project, questions that did not concern the royal sponsors of the ancient Library. This review takes up questions of competition policy raised in the United States, the corporate site for Google’s virtual Library of Alexandria.

After presenting the factual background to the Google Books project and the procedural history of the current class-action lawsuit, we examine two clusters of competition issues concerning the Google Books project: First, whether a class action settlement in litigation between private parties is an appropriate vehicle for making public policy. Second, whether Google’s actions are on balance anticompetitive under U.S. antitrust laws. Antitrust concerns will be given the lion’s share of attention.

I’m particularly proud to post this link because Rudy is one of my colleagues and Marc is one of my students. What began as a class paper turned into a collaboration. Congratulations to Marc; this is an example of why I enjoy working with NYLS students so much.

GBS: Revised Virginia Library Agreement


I don’t know how I missed this, but when the University of Virginia signed its revised digitization agreement with Google, that agreement was made public. Peter Hirtle has examined the revisions and likes what he sees. In particular, it makes the public-domain scans universally available earlier, and it makes pricing reviews for the Institutional Subscription more transparent. These aren’t dramatic changes, but they are incremental improvements in the overall deal.

The Problem with Liability Rules?


I found the following story in Robin Lane Fox’s The Classical World. He’s quoting from Aulus Gellius’s Attic Nights, who in turn is quoting Favorinus:

Lucius Veratius was an extremely wicked man of immense brutality. He used to consider it very amusing to slap the face of a free man with the palm of his hand. A slave used to follow him, carrying a purse full of change, and whenever he had slapped someone, he would order twenty-five small coins (asses) to be counted out, as prescribed by the Twelve Tables. As a result, the praetors later decided that this law in the Tables was obsolete and defunct, and declared by edict that they would appoint assessors to estimate personal damages instead.

GBS: On Declarations


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.

Post About Parodies Constructed Entirely of Self-Referential Utterances


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

Obligatory credit to Metafilter.

The Unmasking Option


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.

Books in the Age of the iPad


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.

GBS: The Many Ways Forward


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.”

The Difference Between Writing and Blogging


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

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

GBS: Reed-Elsevier v. Muchnick Decided


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.

GBS: Additional Opt-Out Letters


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.

Big Provost Is Watching You


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.