Slashdot Mirror

A federal district court has ruled that the state of Oregon illegally infringed on a man's First Amendment rights for fining him $500 because he wrote "I am an engineer" in a 2014 email to the state's Engineering Board. The court ruled that the provision in the law he broke is unconstitutional, which opens the door for people in the state to legally call themselves "engineers." Motherboard reports: This dystopian saga dates back to 2013, when Mats Jarlstrom's wife, while driving, was caught by a red light camera near their home in Beaverton, Oregon. Rather than pay the red light camera fine, Jarlstrom, an electrical engineer, spent months researching the specifics of yellow light timing and red light cameras, and learned that his wife had likely been ticketed for running a yellow light. Jarlstrom began sharing his findings on his personal website, at conferences, and even got featured on 60 Minutes. He also wrote several emails to the Oregon Board of Engineers explaining what he had found. In the email, he noted that he was an "engineer."

Rather than looking into whether traffic light timing should be changed, however, the board sent Jarlstrom a warning -- and then a $500 fine for the crime of "practicing engineering without being registered." Jarlstrom had violated one of Oregon's "Title Laws," which states that "no persons may ... hold themselves out as an 'engineer'" unless they are an "individual who is registered in this state and holds a valid certificate to practice engineering in this state." Jarlstrom has a bachelor's degree in electrical engineering and spent his career working in electronics, but wasn't board certified. He sued the state's engineering board and, last week, a U.S. District Court judge for the District of Oregon ruled that the state's law is unconstitutional. The judge wrote: "The statutes prohibit truthfully describing oneself as an 'engineer,' in any context. This restriction clearly controls and suppresses protected speech, and enforcement of the statute against protected speech is not a hypothetical threat. The term 'engineer,' standing alone, is neither actually nor inherently misleading. Courts have long recognized that the term 'engineer' has a generic meaning separate from 'professional engineer' and that the term has enjoyed 'widespread usage in job titles in our society to describe positions which require no professional training.'"

"The judge ordered that the word 'engineer' be struck from Oregon's law, which is 'substantially overbroad in violation of the First Amendment' and specifically noted that Jarlstrom may describe himself publicly and privately using the word 'engineer' and that he may continue to talk about traffic light timing publicly," reports Motherboard.

"Last week, a California judge decided to allow a class action lawsuit filed in December 2017 against Fiat Chrysler to proceed," reports IEEE Spectrum. "The lawsuit, which could have major ramifications for car makers, was filed in response to stalling issues with 2017 Chrysler Pacifica minivans that the plaintiffs allege were caused by known software defects." From the report: The plaintiffs allege that Fiat Chrysler, despite numerous owner complaints about the Pacifica stalling out, concealed knowledge of defects in Pacifica's powertrain control module (PCM) to keep customers from having concerns about buying the vehicle. Fiat Chrysler attempted to get the lawsuit dismissed, arguing that consumer complaints don't prove that a vehicle defect exists, or demonstrate that the company knew about the alleged defect a priori and concealed it.

The judge agreed with Fiat Chrysler on those points, ruling that the plaintiffs could not use consumer complaints alone as evidence of a defect. However, he pointed out that Fiat Chrysler had issued two technical service bulletins relating to Pacifica's PCM software before the plaintiffs had purchased their vehicle, and two more following their purchase. The judge ruled that there was sufficient evidence to believe it was "at least plausible" that Fiat Chrysler knew that there was a stalling problem with the vehicles before the plaintiffs bought them.

The Supreme Court will review a 2011 class-action lawsuit against Apple, accusing the company of operating an illegal monopoly by not allowing iPhone users to download mobile apps outside of its own App Store, reducing consumer choice. The case, being referred to as Apple Inc. v. Pepper., could have wide-reaching implications for consumers as well as other companies like Amazon. Wired reports: The dispute is over whether Apple, by charging app developers a 30 percent commission fee and only allowing iOS apps to be sold through its own store, has inflated the price of iPhone apps. Apple, supported by the Trump administration, argues that the plaintiffs in the case -- iPhone consumers -- don't have the right to sue under current antitrust laws in the U.S.

The case marks a rare instance in which the court has agreed not only to hear an antitrust case, but also one where no current disagreement exists in the circuit courts. The outcome could change decades of antitrust legal precedent -- either strengthening or weakening consumer protections against monopolistic power. The case also represents a huge source of revenue for Apple; the company raked in an estimated $11 billion last year in App Store commissions alone. The lawsuit centers around another Supreme Court case from 1977, Illinois Brick Co. v. Illinois, "which established what is known as the Illinois Brick Doctrine," reports Wired. "That rule says you can't sue for antitrust damages if you're not the direct purchaser of a good or service."

On Thursday, a federal appeals court ruled that U.S. border agents need some sort of reason to believe a traveler has committed a crime before searching their cellphone. Slashdot reader Wrath0fb0b shares an analysis via Reason, written by Fourth Amendment scholar Orin Kerr: Traditionally, searches at the border don't require any suspicion on the theory that the government has a strong sovereign interest in regulating what enters and exits the country. But there is caselaw indicating that some border searches are so invasive that they do require some kind of suspicion. In the new case, Kolsuz (PDF), the Fourth Circuit agrees with the Ninth Circuit that at least some suspicion is required for a forensic search of a cell phone seized at the border. This is important for three reasons. First, the Fourth Circuit requires suspicion for forensic searches of cell phones seized at the border. Second, it clarifies significantly the forensic/manual distinction, which has always been pretty uncertain to me. Third, it leaves open that some suspicion may be required for manual searches, too.

But wait, that's not all. In fact, I don't think it's the most important part of the opinion. The most important part of the opinion comes in a different section, where the Fourth Circuit adds what seems to be a new and important limit on the border search exception: a case-by-case nexus requirement to the government interests that justify the border search exception. Maybe I'm misreading this passage, but it strikes me as doing something quite new and significant. It scrutinizes the border search that occurred to see if the government's cause for searching in this particular case satisfied "a 'nexus' requirement" of showing sufficient connection between the search and "the rationale for the border search exception," requiring a link between the "predicate for the search and the rationale for the border exception." In other words, the Fourth Circuit appears to be requiring the government to identify the border-search-related interest justifying that particular search in order to rely on the border search exception. "The analysis is interesting throughout, and it would be a fairly large limitation on digital searches conducted at the border, both in requiring some articulable suspicion for digital searches and in the requirement to justify the relationship between the search and the border inspection," writes Wrath0fb0b.

An anonymous reader quotes a report from Ars Technica: A federal judge has revived a lawsuit that angry customers filed against AT&T over the company's throttling of unlimited mobile data plans. The decision comes two years after the same judge decided that customers could only have their complaints heard individually in arbitration instead of in a class-action lawsuit. The 2016 ruling in AT&T's favor was affirmed by a federal appeals court. But the customers subsequently filed a motion to reconsider the arbitration decision, saying that an April 2017 decision by the California Supreme Court "constitutes a change in law occurring after the Courts arbitration order," Judge Edward Chen of U.S. District Court for the Northern District of California said in the new ruling issued last week. The state Supreme Court "held that an arbitration agreement that waives the right to seek the statutory remedy of public injunctive relief in any forum is contrary to California public policy and therefore unenforceable," Chen wrote.

AT&T argued that the court shouldn't consider the new argument, saying that plaintiffs raised it too late. The plaintiffs could have made the same argument before the April 2017 Supreme Court ruling, since the ruling was based on California laws that "were enacted decades ago," according to AT&T. Chen was not persuaded, noting that "there had been no favorable court rulings" the plaintiffs could have cited earlier in the case. "The Court also finds that Plaintiffs acted with reasonable diligence once there was a ruling favorable to them," Chen wrote. As a result, the plaintiffs can now proceed with their case in U.S. District Court against AT&T. However, AT&T will appeal Chen's latest decision, presumably in the U.S. Court of Appeals for the Ninth Circuit.

On November 29th, the U.S. Supreme Court will hear oral arguments in Carpenter v. US, a case essentially asking whether or not authorities need a warrant based on probable cause and signed by a judge to see your cellphone location data. For now, they do not. Given the fact that about 95% of Americans have cellphones, this case has major implications. Quartz reports: Mobile-service providers collect "cell site location information" (CSLI) for all phones, ostensibly to use for things like improving their networks. The U.S. government considers these data "routinely collected business records" rather than private information. That means it can demand the records without proving probable cause. That's what happened in the criminal case of Timothy Carpenter, accused of a series of Detroit, Michigan robberies. At Carpenter's trial, prosecutors presented evidence collected by private companies, obtained by the law without probable cause. They used 127 days-worth of cellphone-location data, amounting to almost 13,000 data points, to tell a circumstantial story of Carpenter comings and goings.

In its brief to the high court, filed in September, the justice department argued that when Carpenter signed onto his cell-phone provider's service, he agreed that his call records weren't private information belonging to him, but rather business records belonging to the company. Therefore, he should have "no reasonable expectation of privacy" when it comes to these records, government attorneys wrote. Carpenter argues that the location evidence was obtained illegally. The Sixth Circuit Court of Appeals denied that claim last year, basing their decision on Supreme Court cases from the 1970s: Smith v. Maryland and US v. Miller . The appeals court concluded that, under what's called the "third-party doctrine," Americans don't have a reasonable expectation of privacy in things like check deposit slips, similar banking records, and dialed telephone numbers.

Slashdot reader destinyland writes: The District Court for the Northern District of California recently issued an opinion that is being hailed as a victory for open source software. In this case, the court denied a motion to dismiss a lawsuit alleging violation of an open source software license, paving the way for further action enforcing the conditions of the GNU General Public License... As part of its motion to dismiss, Hancom argued that using open source code offered under open source licensing terms does not form a contract... The District Court ruled that Artifex's breach of contract claim could proceed, finding that the GPL, by its express terms, requires that third parties agree to the GPL's obligations if they distribute the open-source-licensed software [and] concluded that royalty-free licensing under open source conditions does not preclude a claim for damages...

In denying a motion to dismiss, the District Court only holds that the claims may proceed on the theories enunciated by Artifex, not necessarily that they will ultimately succeed. Still, the case represents a significant step forward for open source plaintiffs... In the past decade, while enforcement of open source licensing violations has become more common, few enforcement cases result in published law. The open source community will be watching this case carefully, and this initial decision vindicates the rights of the open source authors to enforce GPL terms on both breach of contract and copyright theories.

Reader schwit1 writes: A Kuwaiti religious leader who allegedly raised money for jihadist rebels in Syria appears poised to become the first foreigner served a U.S. lawsuit via Twitter.

Hajjaj bin Fahd al-Ajmi has been a hard man to reach for a lawyer seeking compensation in a northern California federal court on behalf of hundreds of thousands of Assyrian Christians who own property in Iraq and Syria.

U.S. Magistrate Judge Laurel Beeler, resolving the impasse, found al-Ajmi has "an active Twitter account and continues to use it," offering the "method of service most likely to reach" him to satisfy the service of process requirement for the case to move forward.

Al-Ajmi is accused by both the U.S. government and the U.N. Security Council of funneling money to armed terrorists.

An anonymous reader writes: Why is it that kids these days spend days upon days watching people play video games on Youtube and Twitch when they could spend those days playing games themselves? While we may never find out why, Let's Plays are an established part of today's gaming ecosystem, and the publishers want their piece of the pie. Nintendo lost love by forcefully taking the proceeds from ad revenue on Youtube for its videos, but Sony... never settling for second-best... has recently filed to trademark the phrase. I don't know what's more surprising: Sony's audacity to grab a phrase with recorded usage as far back as 2007... or that EA didn't think of it first.

Kimomaru writes "Two Facebook users are trying to start a class action lawsuit against Facebook for allegedly mining information from private messages with the intention of selling is to advertisers (full complaint PDF). It's not the first time a social medial player has been in the press over privacy or security issues. But when the services are provided free of charge, does the user have a realistic expectation of privacy or security, especially when it's understood that the user's data is being mined for advertising? If not, should social media networks be allowed to use words like 'private' (as in private messaging) or 'security' to describe their services?"

theodp writes "Challenging earlier assertions that Bill Gates got the rewards due Gary Kildall, a forensic analysis conducted for the latest issue of IEEE Spectrum concludes that the landmark MS-DOS operating system which Bill Gates and Microsoft licensed to IBM was an original piece of work, not stolen goods. Using his company's CodeSuite forensic software, Bob Zeidman said he found no evidence that QDOS or MS-DOS was copied from or was a derivative of Gary Kildall's CP/M. So, what do you think of Microsoft expert witness (pdf) Zeidman's "if-the-codebase-doesn't-fit-you-must-acquit" arguments?"

theodp writes "Back in 2006, a post on Jeff Han's multi-touch screen technology — a real TED crowd-pleaser — gave Slashdot readers a taste of the iPhone and iPad future. Han spun off his NYU Research into a company called Perceptive Pixel which, among other things, gave the world CNN's Amazing Magic Wall. On Monday, Steve Ballmer announced that Microsoft is acquiring Perceptive Pixel, which not only means you'll be able to run Windows 8 on an 82-inch touchscreen, but that the Apple v,. Motorola Mobility lawsuit is about to get more interesting!"

First time accepted submitter WindyWonka writes "Google and AOL were sued for patent infringement Thursday, accused of violating two former British Telecom patents via Google's search 'snippets' and by Google AdSense and Advertising.com ad serving technology. Incredibly, the lawsuit by apparent patent troll Suffolk Technologies asserts that every Google search result 'snippet' display violates one patent, and that another really broad server patent is violated every time Google and AOL serve up ads."

First time accepted submitter WindyWonka writes "Google and AOL were sued for patent infringement Thursday, accused of violating two former British Telecom patents via Google's search 'snippets' and by Google AdSense and Advertising.com ad serving technology. Incredibly, the lawsuit by apparent patent troll Suffolk Technologies asserts that every Google search result 'snippet' display violates one patent, and that another really broad server patent is violated every time Google and AOL serve up ads."

First time accepted submitter WindyWonka writes "Google and AOL were sued for patent infringement Thursday, accused of violating two former British Telecom patents via Google's search 'snippets' and by Google AdSense and Advertising.com ad serving technology. Incredibly, the lawsuit by apparent patent troll Suffolk Technologies asserts that every Google search result 'snippet' display violates one patent, and that another really broad server patent is violated every time Google and AOL serve up ads."

First time accepted submitter WindyWonka writes "Google and AOL were sued for patent infringement Thursday, accused of violating two former British Telecom patents via Google's search 'snippets' and by Google AdSense and Advertising.com ad serving technology. Incredibly, the lawsuit by apparent patent troll Suffolk Technologies asserts that every Google search result 'snippet' display violates one patent, and that another really broad server patent is violated every time Google and AOL serve up ads."

eldavojohn writes "Apparently the Samsung and Apple patent hoedown has received some uninvited guests that wish to troll with the big trolls — all over a built-in button for an emoticon. According to Varia Holdings (don't bother googling, you won't find anyone trying to license their patents to you) 'by asserting [its European] emoticon patent against Apple, Samsung has recognized the value of the type of invention embodied in [Varia's] '731 Patent.' And, thusly, Varia feels this provides grounds to sue Samsung and RIM. Techdirt provides commentary on the obviousness of said patent while raking the USPTO examiner over the coals (although, curiously, gives Samsung a free pass)."

eldavojohn writes "Apparently the Samsung and Apple patent hoedown has received some uninvited guests that wish to troll with the big trolls — all over a built-in button for an emoticon. According to Varia Holdings (don't bother googling, you won't find anyone trying to license their patents to you) 'by asserting [its European] emoticon patent against Apple, Samsung has recognized the value of the type of invention embodied in [Varia's] '731 Patent.' And, thusly, Varia feels this provides grounds to sue Samsung and RIM. Techdirt provides commentary on the obviousness of said patent while raking the USPTO examiner over the coals (although, curiously, gives Samsung a free pass)."

Wrath0fb0b writes "The United States Supreme Court threw out a California law prohibiting the sale of violent video games to minors. Notable in the opinion is a historical review of the condemnation of "unworthy" material that would tend to corrupt children, starting with penny-novels and up through comic books and music lyrics. The opinion is also notable for the odd lineup of Justices that defies normal ideological lines, with one conservative and one liberal jurist dissenting on entirely different grounds. In the process, they continue the broad rule that the First Amendment does not vary with the technological means used: 'Video games qualify for First Amendment protection. Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium. And the basic principles of freedom of speech... do not vary with a new and different communication medium.'"

recoiledsnake writes "What would be your first guess about what an app store sells? Don't be fooled, Apple warns, the phrase 'app store' is not generic and can only be used to describe Cupertino's... um, app store? 'Apple denies that, based on their common meaning, the words "app store" together denote a store for apps,' Apple said in a Thursday filing with a California district court. All this notwithstanding that Jobs himself used the phrase generically while referring to Android app stores. We've previously discussed this ongoing legal battle."

Frequent Slashdot contributor Bennett Haselton writes to point out some unfortunate holes in a judge's recent ruling that was largely welcomed 'round these parts: "A federal judge has ruled that a Canadian adult film producer cannot subpoena the identities of ISP users that were alleged to be sharing its copyrighted movies. Regardless of whether one supports the conclusion, the judge's reasoning was pretty weak. But the real hurdle is convincing people that a non-lawyer is entitled to call out a federal judge on their logic in the first place." Read on for the rest of Bennett's thoughts.

A federal judge has ruled that a Canadian adult film producer cannot subpoena the identities en masse of over 1,000 "John Doe" defendants whom the producers accused of sharing their films and violating their copyright. Quebec-based VPR Internationale had obtained the IP addresses of 1,017 users that they suspected of sharing their copyrighted films over the Internet, and wanted a federal court to sign off on subpoenaing the subscribers' identities from their ISPs.

Judge Harold Baker's ruling denying VPR's request has been lauded as a victory of judicial common sense against abuses of the legal system. Even though this will probably put me in the minority among self-described civil libertarians, I beg to disagree. First, because I don't think that subpoenaing a defendant's identity from a service provider constitutes an abuse of the legal system in and of itself. But more importantly, whether or not one agrees with the judge's decision, I think it contained plenty of logical errors, including a paragraph near the end which literally averaged about one error per sentence.

But back up for a second. Some of you are already thinking: What is a math major doing making legal criticisms of a ruling of a federal judge? So here's what I mean in each instance where I say that the judge made a "logical error": I mean that if you were to take the point made by the judge, and take the opposite point made by someone who disagreed, and you asked a group of experts (certainly if you asked a group of mathematicians, but probably even if you asked a group of lawyers) to read the two points and vote on which one was right, and you didn't tell them which position was the one taken by the judge — that most of the respondents would vote that the judge's position was incorrect.

Conversely, I'm always interested in hearing why people think I might be mistaken, if they say exactly what I've said that they think is incorrect, and why. In my most recent article, I offered a cash prize split between readers who submitted arguments that I was wrong (or, really, that my idea needed more work), and I enjoyed the responses so much that I ended up paying out more than the originally stated prize total. But if someone tries pulling rank and saying that I should defer to them on a legal question because they are a lawyer, law student, Supreme Court justice etc., here's the question I want them to answer: If we rounded up 10 lawyers to act as expert "voters," and showed each of them my argument and the heckler's counter-argument, and didn't tell the voters which argument was made by the math major and which one was made by the law school graduate, for whose argument would the majority vote? If the heckler won't explicitly make that claim, then there's no reason to take them seriously — because, obviously, if only 5 out of any given 10 lawyers would agree with their point, then why should we listen to the 5 who agree, instead of the other 5 who don't? (This does not apply if someone is making a bona fide argument — then the argument can be analyzed on its own terms. But if it's a good argument, the person shouldn't have to invoke their credentials to make it.)

Back to Judge Baker. His argument in support of his ruling begins on the second page, by rejecting the plaintiff's analogy between ISPs and car rental agencies:

VPR compares the Doe defendants' IP addresses to "records of who rented which car at a busy car rental agency, in that IP addresses are like cars "leased by subscribers. If a plaintiff was injured by a rental car, the plaintiff can discover the information on who leased the car from the agency by specifying the license plate of the offending vehicle and the date and time when the injury occurred. Without access to the agency's records, all the plaintiff has is the identity of the rental agency, but not who was driving the rental car." The comparison is not apt. The rental agency owns the car and is a potential defendant, so the adversarial process would yield the driver's information.

Huh? If you're injured by a rental car, how is the rental agency a "potential defendant"? Well, technically, anybody in the world is a "potential defendant" — you can put anyone's name on a lawsuit until a court shoots you down — but since that would make the phrase meaningless, presumably Judge Baker meant that the rental agency would be a legitimate potential defendant, one whom the accident victim would be justified in suing. So again: Huh? Why is a rental car agency liable for an accident caused by one of its renters? Obviously if the rental car agency was negligent in the maintenance of one of its vehicles and that negligence led to the accident, they might be liable — but not simply if their customer did something reckless over which they had no control (which would be analogous to an ISP subscriber committing a copyright infringement that the ISP didn't know about).

So, to translate that into vote-off terms as discussed above. What I mean is that if you took these two points:

• "The analogy between an ISP and a rental car agency is inappropriate, because a plaintiff could sue the rental car agency in order to subpoena the identity of the renter that hit them, but a copyright owner could not do the same to an ISP." [Judge Baker's argument.]
• "The statement that the analogy is inappropriate, makes no sense. In either situation, the plaintiff wants to sue a customer of a third-party company, when the third-party company itself is probably not liable. So in either case, the plaintiff can sue a 'John Doe' defendant, and subpoena the company for the customer's identity. One could argue that this should be permitted in both cases, or prohibited in both cases, but no reason has been given as to why they should be treated differently." [My argument.]

and asked lawyers or mathematicians to vote on which was more correct, and you didn't tell them which argument was made by a judge and which argument was made by a math major, that the second point would get more votes. (I certainly think that if you fibbed and told your respondents that the first argument was made by a defendant, and the second argument was made by a judge in rejecting the defendant's line of reasoning, that most people would vote, "The judge is right." That would be cheating — playing on people's tendency to believe that a judge's reasoning is usually superior — but I could point out that if respondents are really evaluating the two arguments objectively, then it shouldn't matter!)

I'm not going to convert every such disagreement highlighted here into the point-counterpoint format; I think in each case it should be non-controversial how the conversion would go.

To proceed: in claiming that subpoenaing a rental car agency for the identity of their customer is not analogous to subpoenaing an ISP for the identity of their subscriber, Judge Baker adds: "And such information is not necessarily confidential; accident reports and police records may also identify the driver." True, but what does this have to do with anything? The question is: given a certain probability that a company's customer is guilty, is it appropriate to let a plaintiff subpoena the customer's identity from that company? If some customers in similar situations have had their identities made public by other circumstances, the judge's ruling gives no reason why that should be relevant at all, in a situation where the customer's identity is not public.

Judge Baker then raises the point that the customers to whom the IP addresses were assigned might not be the actual infringers:

Moreover, VPR ignores the fact that IP subscribers are not necessarily copyright infringers. Carolyn Thompson writes in an MSNBC article of a raid by federal agents on a home that was linked to downloaded child pornography. The identity and location of the subscriber were provided by the ISP. The desktop computer, iPhones, and iPads of the homeowner and his wife were seized in the raid. Federal agents returned the equipment after determining that no one at the home had downloaded the illegal material. Agents eventually traced the downloads to a neighbor who had used multiple IP subscribers' Wi-Fi connections.

Well, true — the assignee of the IP address might not be the actual copyright infringer. But, more generally, being named as a defendant in a lawsuit does not mean that you're at fault anyway — that's what the trial is for. For a court to take a plaintiff's case against a given defendant seriously, they just have to believe that there is a reasonable probability of the plaintiff winning. If the VPR has a list of IP addresses of users sharing out their copyrighted material, it may be true that not literally all of those infringers are living in the household that the IP address has been assigned to — but what percentage of them probably are? 90% or more? In any other scenario, wouldn't that have been considered quite a "reasonable" likelihood that the plaintiff had a legitimate case against a defendant, and that the case should go forward so that more facts can be brought to light, with the expectation that those facts would move you to a higher degree of certainty about whether the defendant was in fact at fault?

On the same note, Judge Baker goes on to say:

"The list of IP addresses attached to VPR's complaint suggests, in at least some instances, a similar disconnect between IP subscriber and copyright infringer. The ISPs include a number of universities, such as Carnegie Mellon, Columbia, and the University of Minnesota, as well as corporations and utility companies."

But there is no reason to think that in the case of these entities, there would be any more "disconnect" between the actual infringer and the user on the network that the IP address had been assigned to. In fact, in the case of, say, a corporate network, it's more likely that an IP address would have been assigned by the IT department to a specific, trackable user, and not shared out on an unsecured Wi-Fi network where the IP could have been hi-jacked by a car parked on the street, a scenario that's probably more likely for a home network. I'm moderately confident that if you compared commercial home ISPs to corporations and looked at the percentage of times that the "user of record" for an IP address according to the logs was the same as the actual person using it, that percentage would be higher for a corporation than for an ISP serving home users. In any case, Judge Baker certainly gives no reason to expect that it would be lower.

Now here we get to the home stretch, the last paragraph on page 2, where I'm claiming almost one logical error or non sequitur per sentence:

• "As VPR points out, ex parte motions for expedited discovery have been granted in similar cases in other districts; among the thousands of Does in those cases, relatively few motions to quash have been filed."
  
  I'm not even sure what Judge Baker is saying here, but given the context, it seems to be: The innocent John Does' only defense against abuse of the discovery process is to quash the subpoenas (basically, file a motion saying "I'm not guilty, so the plaintiff can't have my identity"), but that's been relatively rare, so we can't rely on that as a defense against abuses of the system. Of course, there could be a simpler explanation as to why it's rare: Perhaps a lot of the John Doe defendants thus named are, in fact, guilty! I certainly don't want to take the position that anyone who doesn't deny their guilt is guilty — but we shouldn't assume that they're innocent, either. Come on — it's not that hard for a copyright holder to join a p2p network or find a Torrent tracker, and get a list of the IP address of a few users who are sharing or downloading their content illegally. Is it that hard to believe that most of the users on that list are probably doing what VPR said they were doing?
• "In at least one case, counsel has sought leave to amend the complaint to add more Doe defendants. See Lightspeed Media Corp. v. Does 1 - 100, Case No. 1:10-cv-05604, d/e 16 (N.D. Ill.) (seeking leave to add Does 101 - 1000 as defendants)."
  
  Uh, OK. Plaintiff started with a list of 100 defendants, and then expanded it to 1,000. What does this have to do with the legitimacy, generally, of suing John Doe defendants and subpoenaing their identities?
• "In Hard Drive Productions, Inc. v. Does 1 - 1000, counsel sought leave to dismiss more than 100 Doe defendants, stating that some of the Does had 'reached a mutually satisfactory resolution of their differences' with the plaintiff."
  
  Well, yeah, that's what you're supposed to do — try and settle out of court instead of bringing every single case before a judge. How does the fact that some plaintiffs settled make it less legitimate to sue John Doe defendants in the first place?
• "Could expedited discovery be used to wrest quick settlements, even from people who have done nothing wrong? The embarrassment of public exposure might be too great, the legal system too daunting and expensive, for some to ask whether VPR has competent evidence to prove its case."
  
  Now these are actually all fair points. The logical error is that they apply to any lawsuit — Judge Baker makes no argument why these problems would be more pronounced in a lawsuit against 1,000 John Does.
  
  In fact, some of these problems would probably be less severe in the case of a lawsuit against 1,000 John Doe defendants than in the case of a lawsuit against a single, named defendant. If you're one of 1,000 people who is accused of illegally downloading an adult movie, then even if the plaintiff learns your identity, it's unlikely that your name is going to appear in any articles about the case — far less likely than if you're the only defendant in the lawsuit. And if, out of over 1,000 defendants, there are at least several dozen who decide to fight the case, they'd be more likely to be able to split the costs of hiring a good lawyer than if only one defendant was named who had to pay all the costs on their own. Both embarrassment and legal fees are less of a burden when you can share them with hundreds of other people.

Now, I'd be happy to live under a legal regime that reached either conclusion — it's not an egregious miscarriage of justice if plaintiffs are able to subpoena the identities of ISP subscribers who show a high probability of being guilty, but it's not an egregious miscarriage of justice if they aren't, either. I think we need more healthy skepticism about the reasoning that judges use to reach those conclusions.

The practice of "judge-bashing" is unfortunately associated in most people's minds with extremists, usually on the right wing, but my reason for being skeptical is simple and non-partisan. Suppose that you were take, say, an economic argument published by a prominent economist, and asked the public to identify what they thought were "mistakes" and submit counter-points to those specific points in the argument. Then, suppose for each such disagreement, you asked an independent panel of economists to vote on who was right without saying which was the point made by the economist and which was the counter-point made by the layperson. (I'm not talking about errors that the author would voluntarily correct once they were pointed out; rather, points where they "dig their heels in" and refuse to back down.) I think it would be quite rare to find a disagreement where the experts were split 50/50 on whether the economist or the layperson was right, and extremely rare to find cases where 80% of the experts voted with the layperson. By contrast, polling my lawyer buddies about this or that part of a judge's reasoning, the 50/50 splits are extremely common, and there were quite a few cases where the vast majority agreed that a judge's reasoning was wrong — but always with the same shrug that there's not much you can do about it.

Frequent Slashdot contributor Bennett Haselton writes to point out some unfortunate holes in a judge's recent ruling that was largely welcomed 'round these parts: "A federal judge has ruled that a Canadian adult film producer cannot subpoena the identities of ISP users that were alleged to be sharing its copyrighted movies. Regardless of whether one supports the conclusion, the judge's reasoning was pretty weak. But the real hurdle is convincing people that a non-lawyer is entitled to call out a federal judge on their logic in the first place." Read on for the rest of Bennett's thoughts.

A federal judge has ruled that a Canadian adult film producer cannot subpoena the identities en masse of over 1,000 "John Doe" defendants whom the producers accused of sharing their films and violating their copyright. Quebec-based VPR Internationale had obtained the IP addresses of 1,017 users that they suspected of sharing their copyrighted films over the Internet, and wanted a federal court to sign off on subpoenaing the subscribers' identities from their ISPs.

Judge Harold Baker's ruling denying VPR's request has been lauded as a victory of judicial common sense against abuses of the legal system. Even though this will probably put me in the minority among self-described civil libertarians, I beg to disagree. First, because I don't think that subpoenaing a defendant's identity from a service provider constitutes an abuse of the legal system in and of itself. But more importantly, whether or not one agrees with the judge's decision, I think it contained plenty of logical errors, including a paragraph near the end which literally averaged about one error per sentence.

But back up for a second. Some of you are already thinking: What is a math major doing making legal criticisms of a ruling of a federal judge? So here's what I mean in each instance where I say that the judge made a "logical error": I mean that if you were to take the point made by the judge, and take the opposite point made by someone who disagreed, and you asked a group of experts (certainly if you asked a group of mathematicians, but probably even if you asked a group of lawyers) to read the two points and vote on which one was right, and you didn't tell them which position was the one taken by the judge — that most of the respondents would vote that the judge's position was incorrect.

Conversely, I'm always interested in hearing why people think I might be mistaken, if they say exactly what I've said that they think is incorrect, and why. In my most recent article, I offered a cash prize split between readers who submitted arguments that I was wrong (or, really, that my idea needed more work), and I enjoyed the responses so much that I ended up paying out more than the originally stated prize total. But if someone tries pulling rank and saying that I should defer to them on a legal question because they are a lawyer, law student, Supreme Court justice etc., here's the question I want them to answer: If we rounded up 10 lawyers to act as expert "voters," and showed each of them my argument and the heckler's counter-argument, and didn't tell the voters which argument was made by the math major and which one was made by the law school graduate, for whose argument would the majority vote? If the heckler won't explicitly make that claim, then there's no reason to take them seriously — because, obviously, if only 5 out of any given 10 lawyers would agree with their point, then why should we listen to the 5 who agree, instead of the other 5 who don't? (This does not apply if someone is making a bona fide argument — then the argument can be analyzed on its own terms. But if it's a good argument, the person shouldn't have to invoke their credentials to make it.)

Back to Judge Baker. His argument in support of his ruling begins on the second page, by rejecting the plaintiff's analogy between ISPs and car rental agencies:

VPR compares the Doe defendants' IP addresses to "records of who rented which car at a busy car rental agency, in that IP addresses are like cars "leased by subscribers. If a plaintiff was injured by a rental car, the plaintiff can discover the information on who leased the car from the agency by specifying the license plate of the offending vehicle and the date and time when the injury occurred. Without access to the agency's records, all the plaintiff has is the identity of the rental agency, but not who was driving the rental car." The comparison is not apt. The rental agency owns the car and is a potential defendant, so the adversarial process would yield the driver's information.

Huh? If you're injured by a rental car, how is the rental agency a "potential defendant"? Well, technically, anybody in the world is a "potential defendant" — you can put anyone's name on a lawsuit until a court shoots you down — but since that would make the phrase meaningless, presumably Judge Baker meant that the rental agency would be a legitimate potential defendant, one whom the accident victim would be justified in suing. So again: Huh? Why is a rental car agency liable for an accident caused by one of its renters? Obviously if the rental car agency was negligent in the maintenance of one of its vehicles and that negligence led to the accident, they might be liable — but not simply if their customer did something reckless over which they had no control (which would be analogous to an ISP subscriber committing a copyright infringement that the ISP didn't know about).

So, to translate that into vote-off terms as discussed above. What I mean is that if you took these two points:

• "The analogy between an ISP and a rental car agency is inappropriate, because a plaintiff could sue the rental car agency in order to subpoena the identity of the renter that hit them, but a copyright owner could not do the same to an ISP." [Judge Baker's argument.]
• "The statement that the analogy is inappropriate, makes no sense. In either situation, the plaintiff wants to sue a customer of a third-party company, when the third-party company itself is probably not liable. So in either case, the plaintiff can sue a 'John Doe' defendant, and subpoena the company for the customer's identity. One could argue that this should be permitted in both cases, or prohibited in both cases, but no reason has been given as to why they should be treated differently." [My argument.]

and asked lawyers or mathematicians to vote on which was more correct, and you didn't tell them which argument was made by a judge and which argument was made by a math major, that the second point would get more votes. (I certainly think that if you fibbed and told your respondents that the first argument was made by a defendant, and the second argument was made by a judge in rejecting the defendant's line of reasoning, that most people would vote, "The judge is right." That would be cheating — playing on people's tendency to believe that a judge's reasoning is usually superior — but I could point out that if respondents are really evaluating the two arguments objectively, then it shouldn't matter!)

I'm not going to convert every such disagreement highlighted here into the point-counterpoint format; I think in each case it should be non-controversial how the conversion would go.

To proceed: in claiming that subpoenaing a rental car agency for the identity of their customer is not analogous to subpoenaing an ISP for the identity of their subscriber, Judge Baker adds: "And such information is not necessarily confidential; accident reports and police records may also identify the driver." True, but what does this have to do with anything? The question is: given a certain probability that a company's customer is guilty, is it appropriate to let a plaintiff subpoena the customer's identity from that company? If some customers in similar situations have had their identities made public by other circumstances, the judge's ruling gives no reason why that should be relevant at all, in a situation where the customer's identity is not public.

Judge Baker then raises the point that the customers to whom the IP addresses were assigned might not be the actual infringers:

Moreover, VPR ignores the fact that IP subscribers are not necessarily copyright infringers. Carolyn Thompson writes in an MSNBC article of a raid by federal agents on a home that was linked to downloaded child pornography. The identity and location of the subscriber were provided by the ISP. The desktop computer, iPhones, and iPads of the homeowner and his wife were seized in the raid. Federal agents returned the equipment after determining that no one at the home had downloaded the illegal material. Agents eventually traced the downloads to a neighbor who had used multiple IP subscribers' Wi-Fi connections.

Well, true — the assignee of the IP address might not be the actual copyright infringer. But, more generally, being named as a defendant in a lawsuit does not mean that you're at fault anyway — that's what the trial is for. For a court to take a plaintiff's case against a given defendant seriously, they just have to believe that there is a reasonable probability of the plaintiff winning. If the VPR has a list of IP addresses of users sharing out their copyrighted material, it may be true that not literally all of those infringers are living in the household that the IP address has been assigned to — but what percentage of them probably are? 90% or more? In any other scenario, wouldn't that have been considered quite a "reasonable" likelihood that the plaintiff had a legitimate case against a defendant, and that the case should go forward so that more facts can be brought to light, with the expectation that those facts would move you to a higher degree of certainty about whether the defendant was in fact at fault?

On the same note, Judge Baker goes on to say:

"The list of IP addresses attached to VPR's complaint suggests, in at least some instances, a similar disconnect between IP subscriber and copyright infringer. The ISPs include a number of universities, such as Carnegie Mellon, Columbia, and the University of Minnesota, as well as corporations and utility companies."

But there is no reason to think that in the case of these entities, there would be any more "disconnect" between the actual infringer and the user on the network that the IP address had been assigned to. In fact, in the case of, say, a corporate network, it's more likely that an IP address would have been assigned by the IT department to a specific, trackable user, and not shared out on an unsecured Wi-Fi network where the IP could have been hi-jacked by a car parked on the street, a scenario that's probably more likely for a home network. I'm moderately confident that if you compared commercial home ISPs to corporations and looked at the percentage of times that the "user of record" for an IP address according to the logs was the same as the actual person using it, that percentage would be higher for a corporation than for an ISP serving home users. In any case, Judge Baker certainly gives no reason to expect that it would be lower.

Now here we get to the home stretch, the last paragraph on page 2, where I'm claiming almost one logical error or non sequitur per sentence:

• "As VPR points out, ex parte motions for expedited discovery have been granted in similar cases in other districts; among the thousands of Does in those cases, relatively few motions to quash have been filed."
  
  I'm not even sure what Judge Baker is saying here, but given the context, it seems to be: The innocent John Does' only defense against abuse of the discovery process is to quash the subpoenas (basically, file a motion saying "I'm not guilty, so the plaintiff can't have my identity"), but that's been relatively rare, so we can't rely on that as a defense against abuses of the system. Of course, there could be a simpler explanation as to why it's rare: Perhaps a lot of the John Doe defendants thus named are, in fact, guilty! I certainly don't want to take the position that anyone who doesn't deny their guilt is guilty — but we shouldn't assume that they're innocent, either. Come on — it's not that hard for a copyright holder to join a p2p network or find a Torrent tracker, and get a list of the IP address of a few users who are sharing or downloading their content illegally. Is it that hard to believe that most of the users on that list are probably doing what VPR said they were doing?
• "In at least one case, counsel has sought leave to amend the complaint to add more Doe defendants. See Lightspeed Media Corp. v. Does 1 - 100, Case No. 1:10-cv-05604, d/e 16 (N.D. Ill.) (seeking leave to add Does 101 - 1000 as defendants)."
  
  Uh, OK. Plaintiff started with a list of 100 defendants, and then expanded it to 1,000. What does this have to do with the legitimacy, generally, of suing John Doe defendants and subpoenaing their identities?
• "In Hard Drive Productions, Inc. v. Does 1 - 1000, counsel sought leave to dismiss more than 100 Doe defendants, stating that some of the Does had 'reached a mutually satisfactory resolution of their differences' with the plaintiff."
  
  Well, yeah, that's what you're supposed to do — try and settle out of court instead of bringing every single case before a judge. How does the fact that some plaintiffs settled make it less legitimate to sue John Doe defendants in the first place?
• "Could expedited discovery be used to wrest quick settlements, even from people who have done nothing wrong? The embarrassment of public exposure might be too great, the legal system too daunting and expensive, for some to ask whether VPR has competent evidence to prove its case."
  
  Now these are actually all fair points. The logical error is that they apply to any lawsuit — Judge Baker makes no argument why these problems would be more pronounced in a lawsuit against 1,000 John Does.
  
  In fact, some of these problems would probably be less severe in the case of a lawsuit against 1,000 John Doe defendants than in the case of a lawsuit against a single, named defendant. If you're one of 1,000 people who is accused of illegally downloading an adult movie, then even if the plaintiff learns your identity, it's unlikely that your name is going to appear in any articles about the case — far less likely than if you're the only defendant in the lawsuit. And if, out of over 1,000 defendants, there are at least several dozen who decide to fight the case, they'd be more likely to be able to split the costs of hiring a good lawyer than if only one defendant was named who had to pay all the costs on their own. Both embarrassment and legal fees are less of a burden when you can share them with hundreds of other people.

Now, I'd be happy to live under a legal regime that reached either conclusion — it's not an egregious miscarriage of justice if plaintiffs are able to subpoena the identities of ISP subscribers who show a high probability of being guilty, but it's not an egregious miscarriage of justice if they aren't, either. I think we need more healthy skepticism about the reasoning that judges use to reach those conclusions.

The practice of "judge-bashing" is unfortunately associated in most people's minds with extremists, usually on the right wing, but my reason for being skeptical is simple and non-partisan. Suppose that you were take, say, an economic argument published by a prominent economist, and asked the public to identify what they thought were "mistakes" and submit counter-points to those specific points in the argument. Then, suppose for each such disagreement, you asked an independent panel of economists to vote on who was right without saying which was the point made by the economist and which was the counter-point made by the layperson. (I'm not talking about errors that the author would voluntarily correct once they were pointed out; rather, points where they "dig their heels in" and refuse to back down.) I think it would be quite rare to find a disagreement where the experts were split 50/50 on whether the economist or the layperson was right, and extremely rare to find cases where 80% of the experts voted with the layperson. By contrast, polling my lawyer buddies about this or that part of a judge's reasoning, the 50/50 splits are extremely common, and there were quite a few cases where the vast majority agreed that a judge's reasoning was wrong — but always with the same shrug that there's not much you can do about it.

An anonymous reader writes "Florian Mueller claims to have produced new evidence that he believes supports Oracle's case against Google on the copyright side of the lawsuit. Oracle originally presented one example to the court, and that file was found to have been part of older Android distributions, with an Apache license header. Mueller has just published six more files of that kind and believes the Apache Software Foundation will disown those just like the first one because those were never part of the Apache Harmony code base. Furthermore, various source files from the Sun Java Wireless Toolkit were found in the Android codebase, containing a total of 38 copyright notices that mark them as proprietary and confidential, but Google apparently published their source code regardless."

sabt-pestnu sends in an update on our story about South Carolina and subversives. "According to Eugene Volokh, the Raw Story article has got it backwards. Westlaw says that the cited statute dates back to 1951, when a lot of anti-Communist statutes were being enacted nationwide. What brought Raw Story's attention to it may be that South Carolina is once again trying to repeal the archaic law. And in any event, a half-century-old case (Yates vs. United States, 354 U.S. 298 (1957)) took most of the teeth out of such laws."

eldavojohn writes "Not to be out patent trolled by Eolas, a mystery company named 'BetaNet, LLC' is suing: Adobe Systems, Inc, Apple, Inc., Arial Software, LLC, Autodesk, Inc.,, CARBONITE, INC., Corel Corp., Eastman Kodak Co., International Business Machines Corp., Intuit, Inc., Microsoft Corp., McAfee, Inc., Oracle Corp., Rockwell Automation, Inc., Rosetta Stone, Inc., SAP America, Inc., Siemens Corp. and Sony Creative Software, Inc. for infringement of their patent entitled Secure system for activating personal computer software at remote locations. And of course, this was filed in our favoritest of favorite places: Marshall, TX (Texas Eastern District Court)."

eldavojohn writes "Media Queue holds the rights to patent 7389243 which is simply a patent on the notification system (like e-mail) to users of changes in the status of their DVD rental queues. Of course, they filed suit in a random place against Netflix, Blockbuster and everyone else sending e-mail updates about DVD-by-Mail services. It was later moved to California and was dismissed last week. In related news on the ailing patent system, the USPTO unveiled a new plan to reduce backlog in its system by offering pending patents special examiner status if the holder abandons another co-pending unexamined application."

eldavojohn writes "Media Queue holds the rights to patent 7389243 which is simply a patent on the notification system (like e-mail) to users of changes in the status of their DVD rental queues. Of course, they filed suit in a random place against Netflix, Blockbuster and everyone else sending e-mail updates about DVD-by-Mail services. It was later moved to California and was dismissed last week. In related news on the ailing patent system, the USPTO unveiled a new plan to reduce backlog in its system by offering pending patents special examiner status if the holder abandons another co-pending unexamined application."

An anonymous reader writes "In a sign that patent trolls are getting desperate to keep their cases in East Texas — long known as the friendliest venue for their claims — some have taken to suing tiny, no-name companies that are run by East Texas residents. The hope is that, if at least one defendant is located in East Texas, the judge will keep the entire case there. Nate Neel, a Longview, Texas resident with a small open source software company called CitiWare, was sued by Bedrock Computer Technologies in June despite (he claims) having no customers or other meaningful operations of any kind. In response, Mr. Neel has posted a strongly worded letter to Bedrock's attorneys on his Web site. It will be interesting to see how East Texas judges respond to this abuse of process perpetrated against their own residents."

eldavojohn writes "Okay, well, maybe not everyone but more than twenty companies (including Apple, Qualcomm, Motorola and Microsoft) are being sued for a generic patent that reads: 'Apparatus and methods for controlling a portable electronic device, such as an MP3 player; portable radio, voice recorder, or portable CD player are disclosed. A touchpad is mounted on the housing of the device, and a user enters commands by tracing patterns with his finger on a surface of the touchpad. No immediate visual feedback is provided as a command pattern is traced, and the user does not need to view the device to enter commands.' Sounds like their may be a few companies using that technology. The suit was filed on July 15th in the favoritest place ever to file patent claim lawsuits: Texas Eastern District Court. It's a pretty classic patent troll; they've been holding this patent since 2003 and they just noticed now that everyone and his dog are using touchpads to control portable electronic devices."

An anonymous reader writes "Three months after being awarded $873 million in a lawsuit against Atlantis Blue Capital for violating the CAN-SPAM Act of 2003, Facebook earlier this week filed a federal complaint against 'Spam King' Sanford Wallace in San Jose District Court. Las Vegas night club manager Adam Arzoomanian and Scott Shaw are also named as defendants in the suit." These filings do not mark the first time Wallace has faced legal action; last May, MySpace won a $230 million judgment against him.

Stephen Larson alerts us to the out-of-court settlement of Gatehouse v NY Times, a lawsuit that attempted to stop the Boston Globe from linking to headlines and excerpting initial sentences from a competitor's Web site. At issue was the Globe's practice — barely distinguishable from those of Google News, Yahoo, and others — of linking to another news source's coverage of local news. The upshot is that the Boston Globe will stop the linking. No judicial precedent was set, because the case was settled before reaching a judge.

CowTipperGore writes "The AP reports (via Yahoo!) that Nintendo of America Inc. has been ordered to pay a small East Texas gaming company $21 million for infringing on a patent while designing controllers for its popular Wii and GameCube systems. No stranger to lawsuits over controller designs, a Nintendo spokesman said the company will seek an appeal. The suit was originally filed in 2006 and included Microsoft. Microsoft's aggressive legal push back apparently helped as they reached a (confidential) settlement agreement before the case went to trial."

Frequent Slashdot Contributor Bennett Haselton writes with his latest which starts "If I were writing laws such that I wanted everybody to agree on how to interpret them, I would use the software development life cycle: First, have lawmakers (analogous to "developers") write drafts of the laws. Then a second group (the "test case writers") would try to come up with situations that would be interpreted ambiguously under the law. Then a third group, the "testers", would read the proposed law, read the test case situations, and try to determine how the law should be applied to those cases, without communicating with the law writers, the test case writers, or each other. If there's too much disagreement in the third group on how the law should be applied, then it's too vague to be a proper law. The only laws which made it through this process would be ones such that when they were finally passed, most citizens (the "users") could agree on how to interpret them, in cases sufficiently similar to the ones the test case writers could come up with."

The irony is that this is how laws are supposed to work anyway. Laws have been struck down as being "void for vagueness" on the theory that people ought to be able to read them and know what they mean. But what does "vagueness" mean, if not that different people cannot independently agree on what a law means, and even the nine highest-ranked legal experts in the country are split 5-4 on how to read it? Some Supreme Courts, such as under William Howard Taft, tried to reach unanimous verdicts whenever possible on the theory that it would persuade people of the correctness of their decisions. But unanimity doesn't prove anything if it was achieved by agreeing to agree. Only if judges were put in separate rooms and independently agreed on how to apply a law to a given case, would that prove that the clarity came from the text of the law itself. Legislators ought to start at least trying to pass laws that would meet that test.

For some reason we seem to have just accepted the alternative as the status quo, where laws are passed that express a general sentiment ("no spam with a 'misleading' subject line") but nobody thinks that you could put two people in different rooms and expect them to agree on how the law would apply in most cases. The parties involved in the first court cases may have to spend ruinously large amounts of money to get to the point where judges rule on how to interpret the law, only to find that lower court judges disagree with each other. Meanwhile, anybody bringing a case now has to look up not just the law, but reference the lower court rulings that support their side, while their opponent of course references the other rulings. And even if a case does finally get appealed up to the Supreme Court, which issues a ruling binding on all lower courts, future researchers still can't find out the state of "the law" by looking up the statute; they have to look up the statute and read the Supreme Court ruling which states how the statute should be read (which may still be ambiguous as applied to their current situation). All of this costs a lot of money, which results in a huge waste of resources if both sides can afford it, and tilts the playing field if only one of them can.

I wonder if the reason this is so widely tolerated is because people have absorbed the notion that making and interpreting laws has to be hard, like brain surgery. But brain surgery is hard because the brain is naturally complex and not man-made. Lawyers also have to learn a lot of complex procedures, but not as complex as brain surgery; the major difficulty in a court case is guessing how the judge may interpret an ambiguous law (which is not "difficult" so much as a matter of being lucky), and knowing the unwritten rules that govern what actually happens (including which written rules are followed and which ones are ignored). And there's no reason in principle why this guesswork couldn't be reduced by having laws be more clear to begin with, and putting the "unwritten rules" down on paper.

I watched a scaled-down version of this play out in the first few cases that I brought against spammers in Small Claims court in Washington (although it involved only a waste of resources, not money, since Small Claims doesn't allow lawyers). You know the chorus, so all together now: Some judges said you could sue people out-of-state, and some said you couldn't. Some judges said you could sue for statutory damages in Small Claims, and some said you could only sue if you'd lost money. Some judges said that you could represent a corporation that you own, and some said that if you're a non-lawyer, you can't even represent your own corporation. Some said you could sue under a federal law in Small Claims, and some said you could only sue under a federal law in federal court. There are many more examples, and those were just the contradictions about Small Claims court procedure generally, not even counting the specific issues raised by the anti-spam law.

But as much as I've complained about that in the past, I don't blame the judges for that part. If the law is unclear, then judges have to come down one way or the other. (What I've complained about is when judges say that their interpretation is "the law", and that if you don't get it, you have to do more research. Lawyers know to take this kind of comment with a grain of salt, but a non-lawyer who takes it at face value, could end up wasting dozens of hours or hundreds of dollars in lawyer's fees before realizing that the judge's interpretation was not actually the law, and a different judge might have said the opposite. The judge should just be honest and say, "Well, I'm the ref and this is how I'm calling it. On another day with another judge you might get something else." I've had cases heard by some judges who basically said as much.) Often both interpretations are reasonable, but that's the point -- if both interpretations are reasonable, then there's something wrong with the way the law is written!

For example, there was the judge who said that you couldn't sue in Small Claims unless you'd lost money, because Small Claims jurisdiction is limited to "cases for the recovery of money only if the amount claimed does not exceed four thousand dollars". Most judges interpreted "recovery of money only" to mean that Small Claims courts can only award money damages, and not, for example, order someone to return property. Two judges, however, said that "recovery of money" implied that you could only literally "recover" money that you used to have and then lost (relying on the common English meaning of the word "recover"). In legal jargon, however, "recover" often simply means taking something from another party, and I won one such case on appeal after I submitted three Supreme Court rulings as evidence that used the phrase "recover statutory damages" or "recover punitive damages" in that sense, since statutory damages and punitive damages refer to money over and above what the plaintiff actually lost. (The original judges did not change their minds, but one of them later recused herself from any future spam cases filed by me, a move that I thought was questionable.)

Here's another example where there's no excuse for the law not to be completely clear, since it's specifying a number. To appeal a Small Claims ruling in Washington, you have to post a bond for "twice the amount of the judgment and costs, or twice the amount in controversy, whichever is greater". Presumably the "amount in controversy" means the amount that the plaintiff was suing for. But hang on -- in Small Claims you can't possibly be awarded more than you sued for. And that means the "the amount of the judgment and costs" will always be less than or equal to "the amount in controversy"! So why not just say "twice the amount in controversy"?

Or perhaps the "amount in controversy" only means the amount that the plaintiff and defendant disagree on. So if you sue someone for $2000, and the defendant agrees on the first $500 but not the remaining $1,500, and the judge's interpretation falls in between and she awards you $1,200, how much of a bond do you post if you want to appeal? $3,000, literally twice the "amount in controversy" between you and the defendant? $2,400, twice the amount of the judgment? $1,600, twice the difference between what you sought and what the judge awarded you? $4,000, twice the amount you sued for?

Beats me. When I first started out, I'd drive myself and my lawyer friends crazy asking, "Well, what's the rule? What's the answer?" Well, now I know: There is no rule, it just depends on what the judge says. Actually in this case, it depends on what the clerk says -- because it's the clerk at the courtroom's front office, not the judge, who handles the paperwork for an appeal and checks that you posted a bond for the right amount, so you have clerks effectively deciding how to interpret the law. (Just last week, after I sued a telemarketer for $1,500 and won a judgment for $565, the telemarketer appealed by posting a bond for twice that amount, or $1,130. This doesn't seem correct under any interpretation of the law, since the "amount in controversy", however you define it, was greater than the "amount of the judgment" of $565.)

Sometimes, courts have settled on how to interpret a rule, but the interpretation is still different from what the rule actually says. The Small Claims form that you serve on defendants says, "You are further notified that, in case you do not appear, judgment will be rendered against you for the amount of the claim as stated herein below..." This is not true -- you can lose even if the other party does not appear (if the judge thinks, for example, that a spam's subject line was not misleading enough). I understand that having that line on the form serves a useful purpose by getting people to show up. But it's still wrong, and everybody knows that it's wrong, and it's on the form anyway.

A more serious example: When I first started suing spammers, if I thought they would show up in court, I'd sometimes try to go to the trouble of catching them in a lie, like the guy who showed up and claimed he didn't know anything about any spam, before I showed that I had recorded a phone call where he admitted that he could send out 5 million e-mails from Chinese servers for $500. (Yes, taping the call was legal -- follow the link for more info.) The written rule is that if you lie under oath in court, you can be arrested for committing a felony, even if the case is only a civil trial. But it turns out the unwritten rule is that perjury in a civil case is almost never prosecuted, and in most of my cases where I had proof that the defendant lied, the best that would happen was that I'd just win the civil case anyway, and sometimes not even that. It's not just Small Claims, either -- in one currently ongoing case, the defendant's lawyer just filed an answer to our complaint stating "Plaintiff subscribed to receive our e-mails". There's absolutely no way their attorney believes that to be true (with the spam in question being sent by mortgages spammers from forged domains, it's hard to see how anyone could "subscribe" to receive those mails even if they wanted to), but attorneys are required to submit such briefs with good faith in their veracity. So why isn't he on the hook for that? Because of the unwritten rule that courts just don't make a big deal out of it.

The point is that none of these issues is hard to grasp. The difficulty lies not in understanding the problems, but in the impossibility of guessing how a judge will interpret an ambiguous rule -- or, in the case of an unwritten rule which contradicts the written ones, the difficulty of knowing the unwritten rule if you don't have a lawyer's experience.

So, ambiguous laws could be divided into three categories:

1. Laws and rules where there ought to be no ambiguity at all -- for example, rules about who can be sued where, and for how much, and what size bond you have to post if you want to appeal. The fact that these laws are not clear enough to be universally agreed up on, is just silly. (Again, if judges have a conference or an e-mail discussion and decide on an interpretation, that doesn't mean the law as written was clear -- in fact, the fact that they had to have that discussion, proves that it wasn't.)

2. "Unwritten rules" that are generally agreed upon by lawyers and judges, but which are not actually written down or may even contradict the rules codified into law. Are trials and proceedings actually conducted according to written rules? The acid test for this would be: Hire a physics professor or somebody (so the legal establishment can't use the excuse of calling him a dumbass) and have him look at the history of events and documents in a typical civil case, from the vantage point of one side's lawyer. At each stage in the proceeding, before the professor sees what the lawyer actually did next, have the prof try to figure out what they would have done, based on the written rules. (The question is not whether the prof would have come up with the same strategy as the lawyer, but whether they would have done something that was procedurally correct at all.) If there are too many cases where the professor does something that technically conforms to the written rules, but where the lawyer says it would have been rejected by the court as procedurally invalid -- and if the same thing keeps happening with more and more smart non-lawyers trying the same experiment -- then this suggests that either the procedures need to be changed to conform with the written rules, or the written rules should conform with the procedures. (Because actually changing laws and rules is so hard, a better idea would be to publish an "annotated version" of the court rules which describes the procedures the way they are actually followed.)

3. Laws governing situations where ambiguity is hard to get rid of -- for example, the part of the Washington anti-spam law prohibiting "misleading subject lines". Here the question is whether a mushy category like that could ever be clearly defined so that people would independently agree on what it meant.

For the first two categories, bringing some clarity to those laws ought to be a no-brainer. Some candidate like Ron Paul or Dennis Kucinich who can say whatever they want because they're not going to win anyway, should make an issue out of it. They wouldn't have to fix the problem all at once. They could just promote it as a core American value that has been overlooked: Laws and court rules should be clear, and they can't be called clear unless people can independently agree on how to read them. The Left could get behind it because it would bring more equality between the rich and poor in the legal system. The Right could get behind it because they style themselves as the party backing judges who are "strict constructionists" that apply the law as literally as possible. (Although at the risk of alienating potential right-wing supporters, I don't think that "strict constructionism" would have much meaning until laws are clarified using something like this process. To say that this or that judge is a "strict constructionist" under our current laws, often sounds to me like a bunch of hooey, when the laws are too ambiguous for anybody to strictly construct anything out of them. Clarence Thomas, who is often held out as an example of a "strict constructionist" judge, has said that Tinker vs. Des Moines, the Supreme Court case that extended First Amendment rights to high school students, is "without basis in the Constitution". But there's nothing in the First Amendment to say that it's limited to individuals over 18, although ironically most "strict constructionist" judges and their supporters, read it as if it is.)

The third category of ambiguous laws would be more interesting to try to fix. Would it be possible to come up with a standard for a "misleading" subject line that everyone could agree on? Probably not. But I think you could measure the ambiguity of a law by using testers and test case writers in the kind of procedure I suggested in the first paragraph, and you could get to the point where there was less disagreement among the testers on how to interpret the law as applied to typical subject lines.

If lawmakers knew in advance that their laws would be subject to that kind of test, they would write them more clearly the first time around. Why couldn't laws be written to include a list of hypothetical situations, for example, specifying which situations the law covered and which ones it didn't? For example, a list of sample spam e-mails to illustrate what the law means by a "misleading subject line". Of course, the trouble with picking examples to illustrate your own points, is that people tend to pick examples that fall squarely in the middle of the categories they're illustrating ("your refund has been processed" is misleading, "printer cartridges for sale" is not). If the lawmaker included illustrative cases like this that were too-obvious examples of what they were describing, then the "test case writers" would be able to shoot down the proposed law by picking hypothetical cases that were closer to the borderline (so that in the third phase, when the testers tried to apply the law to those borderline cases, different testers would classify the borderline cases differently, and the law would fail the vagueness test). To mitigate this, the author of the law should pick illustrative examples that would be at or near the borderline, thus providing clearer guidance as to where the boundary lies between a misleading and non-misleading subject line. Which is what they should be doing in the first place.

Now, there are some problems that even the double-blind test for unambiguous laws, would not solve:

• Judges could be systematically biased against a particular law (and even proud of it), in which case they can make things difficult for you even if the law is unambiguous. Or, they might be so biased in favor of a law that they carry it further than the clearly proscribed boundaries, as in the case of a judge who upheld the conviction of a man for sending sexually explicit instant messages, even though the law in question was clearly limited to e-mails.

• Judges may not take cases seriously from non-lawyers. In one series of cases that I brought, I filed written motions with two of the pages stuck together by a tiny thread of paper, so that after the judge ruled, I could examine the motions in the court file to see if the thread was still intact. I found that about half the time, the judge had rejected the motion without reading it.

  This is a hard obstacle to overcome, especially after the Commission on Judicial Conduct ruled that it was not a violation of the Code of Conduct for a judge to reject a motion without even turning the pages. It wouldn't do any good to show that judges ruled against pro se (self-representing) plaintiffs more often than against lawyers, because judges could claim it was because pro se plaintiffs just made more errors (although it would be hard to use this excuse to explain why judges rejected briefs without reading them at all). One way to test this would be to have judges conduct the trials "blind" so that they would see the briefs presented by each side, but they wouldn't know whether the brief was submitted by a lawyer or a non-lawyer representing themselves. However, this would require difficult changes to the way legal procedures are conducted

  A simpler way might be: Once the "unwritten rule book" has been authored, such that your typical non-lawyer in the above experiment knows what kind of briefs to submit at each stage of a trial, have a legally trained third party look at briefs written by the lawyer and briefs written by an average lawyer, and see if they can tell which is which. If the third party can't tell, then that indicates the non-lawyer is writing the briefs almost indistinguishably from a lawyer -- and then if a judge in a real trial keeps hammering them for "procedural violations", it would be because of the judge's knowledge that the party was a non-lawyer, and not because of what the party actually did. On the other hand, if the judge ruled against the person in the same proportion that that person's briefs were being flagged as "obviously written by a non-lawyer" in the double-blind experiment, then that would indicate the judge was being fair.

• Even if a law is perfectly unambiguous, judges may disagree on whether it is constitutional under the First Amendment, for example. Making these situations unambiguous would involve tampering with the First Amendment, probably not a good idea in this or any other political climate.

• It wouldn't do anything about the corrupt process by which laws are often passed in the first place, in exchange for campaign contributions. (As one scholarly analysis says, "It's exactly like buying a hamburger, except that under our laws, everybody must pretend that nobody is buying anything, and nobody is selling anything.")

But notwithstanding these problems, I think any law that could pass the double-blind interpretation test, would be an improvement over one that can't. First, because it appeals to our sense of fairness to have rules clearly laid out. Second, if we really followed the void for vagueness doctrine, laws would be able to pass that test anyway. Third, economists have documented that there are economic benefits to having stability and predictability in the law. Economist Thomas Sowell wrote in Race and Culture that in some historical periods, even when groups given second-class status under the law (such as Jews in Eastern Europe or the Chinese in Southeast Asia), they were able to prosper better than they did elsewhere, as long as their basic property rights were protected, and the laws, even the discriminatory ones, were consistent and predictable!

This isn't something that would require a wholesale change in a state's constitution or lawmaking procedure. Any legislator could voluntarily try this process out to see if it resulted in laws that were easier for constituents to understand, and had a greater chance of being interpreted by judges to give the result that the legislator wanted. Imagine having an anti-spam law, for example, which said:

Misleading subject lines are prohibited. This includes not only subject lines which contain false advertising, such as:

• 'lotion that cures baldness'
• 'legal copies of Windows for $20'

but also subject line that mislead the user into wasting time on a message. This is because a large part of the harm done by spam is not due to the falsity of the advertisements, but due to the time that users waste on each message before realizing that it's an advertisement. As such, misleading subject lines include those that mislead the user into thinking that the message is from a personal acquaintance, such as:

• 'Congratulations!'
• 'Touching base'

or a subject that misleads the user into thinking that the message is a 1-on-1 communication, such as:

• 'Re: Question about your website'
• 'Shareholder request'
• 'urgent cancer call'
• 'Reminder: link to your website http://slashdot.org/'

[Except for the first group, all of these are subject lines from real spams that I received, which Small Claims judges ruled were not misleading. Giving them the benefit of the doubt, I think they are applying the standard of whether a spam constitutes fraudulent or deceptive advertising, not whether it tricks you into opening it. But the original author of the anti-spam law, when talking about other proposed measures, stated that the point of anti-spam laws is that "Computer users should be able to know instantly what's spam and what isn't."]

If you were reading a series of legal statutes and came across one written like this, it would be jarring, like reading a Wikipedia article about cell division and then getting to the part where someone wrote "And Bennett is gaytarded". But that's because we're accustomed to laws being ambiguous, not spelling out how they should be interpreted using reasons and examples. I would like to see some lawmaker, somewhere, insert a law into their state's legal code that looked and sounded something like this. The idea is so radical that maybe it could only be done by an eccentric, like the congressman who had Elmo testify before a Congressional committee before he was arrested for bribery (the Congressman, not Elmo), or the guy who passed a House Resolution commending Napoleon Dynamite ("any members who choose to vote 'Nay' on this concurrent resolution are "FREAKIN' IDIOTS!"). Or maybe it would be up to a regular lawmaker who thinks, what the hell, let's write a law so that people can agree on what it means, and see if it starts a trend.

As for taking the rules that ought to be clear once and for all, like who can be sued where and for how much, some 3%-getting-candidate should start talking about it. When I read an article about how some lawsuit was stalled because a lawyer complained that it was filed in the wrong district, I can barely keep reading because I get sidetracked thinking this is such a pathetic reflection on our legal system. If the rule about where the suit can be filed is unambiguous, why aren't the lawyers sanctioned for raising it as a false issue? If the rule really is ambiguous, why hasn't it been made clear a long time ago? If you support (or are) a politician or candidate who wants to ask these questions, the field is wide open.

The Xoxo Reader writes "A new filing in the Autoadmit Internet defamation lawsuit (previously discussed here on two occasions) reveals how the plaintiffs' lawyers have attempted to discover the identities of the defendants, who posted under pseudonyms on a message board without IP logging. The defendants had posted links and excerpts of several Web pages that mention the plaintiffs, including a Washington Post article, a college scholarship announcement, and a federal court opinion. Now the plaintiffs are asking those Web sites for logs of everybody who accessed those articles in the hours before the allegedly defamatory content was posted. (All the more reason to read the web through Google cache!) The plantiff's motion for expedited discovery includes copies of the lawyers' letters to hosting providers, ISPs, and others. It also includes replies from the recipients, many of whom point out that the lawyers' requests are technically impossible to fulfill. No matter; the plaintiffs are asking the court to issue subpoenas anyway. This thread contains a summary of the letters in the filing."