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.

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

Obligatory credit to Metafilter.

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.

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

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.

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.

Continued . . .