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Understanding the meaning of legally operative words is essential to understanding the logic or reasoning of a legal decision. That's one of those things you would understand if you bothered to listen to people in the field you keep trying to discuss.

When Judge Mosman writes that the e-mails are exposed to employees, it does not mean that employees are allowed to rummage through them as a matter of policy, or even that employees actually look at the e-mails. Consider California v. Greenwood, 486 U.S. 35 (1988), in which the Supreme Court ruled that individuals did not have a legitimate expectation of privacy in their garbage because it was exposed to the public, despite the fact that California law explicitly protected the rights of individuals to their garbage placed out for collection. Also consider Google's privacy policies, which allow Google to examine the contents of users' emails for advertising, preventing spam, or enforcing the terms of use. Gmail Privacy Notice, http://mail.google.com/mail/help/intl/en/privacy.html; Google Terms of Service, http://www.google.com/accounts/TOS. The fact that a user conveys their information to Google, and that Google has the ability to read that information (absent steps such as encryption), could easily be sufficient to "expose" these e-mails to Google under existing law.

Were you someone with a degree of skill in legal writing, you might have seen fit to do a little more research. Had you done so, you would have found a Sixth Circuit Court of Appeals case, Warshak v. U.S., No. 06-4092 (6th Circ. 2007), available at http://www.ca6.uscourts.gov/opinions.pdf/07a0225p-06.pdf (vacated en banc), which deals with this precise question. In its original panel discussion, the Sixth Circuit held that end users do have a reasonable expectation of privacy in their e-mails, highlighting prior decisions of the Fourth and Ninth Circuits coming out each way on the question dependent on their specific facts. Over a vigorous dissent, the Sixth Circuit overturned the decision in it's en banc review, Warshak v. U.S. No. 06-4092 (6th. Circ. 2008), available at http://www.ca6.uscourts.gov/opinions.pdf/08a0252p-06.pdf, arguing that the case was not yet ripe for review.

As I said previously, your interpretation could very well be correct. It's certainly my preferred outcome. That doesn't change the fact that your analysis was the work of a rank amateur whose writing shouldn't be treated as if it had merit.

There's a notice on the site - here or as a featured link on there home page - that says fee exempt customers are prohibited from releasing documents to the public. It didn't say anything about releasing them if you did pay for them.

Aside from the silly idea of saying you can't make public documents public, are they saying you can only release these documents if you payed for them?

Instead of spouting bullshit, you could get some facts first. From the PACER FAQs:

Why are there user fees for PACER?

In 1988, the Judiciary sought funding through the appropriation process to establish the capability to provide electronic public access services. Rather than appropriating additional funds for this purpose, Congress specifically directed the Judiciary to fund that initiative through the collection of user fees. As a result, the program relies exclusively on fee revenue.

So, in fact, PACER is NOT supported by taxes.

Furthermore, just because some service receives some tax money does not mean it is completely funded by taxes. There are many services that receive some tax money, but not enough to pay for the entire service. The rest is made up in user fees. This is not double dipping.

Technically, they have this in the USA; judges are elected. In practice, this means that judges are subject to the same pressures as the legislature and executive (i.e. needing bribes, uh, campaign contributions, to get reelected) so it doesn't actually solve the

U.S. federal judges are appointed.

Rhode Island District Court Judge William E. Smith was nominated by President George Bush in July 2002 and confirmed by the Senate in November 2002.

Only one federal district judge has ever been convicted of bribery.
Jury Convicts U.S. District Judge in Bribery Case [1991]

The formal impeachment and removal of a federal judge - for any cause - is extraordinarily rare. Impeachment in the United States

Loose talk of bribery has become the geek's all-purpose explanation of judicial decisions that are not to his liking.

"if the glove doesn't fit, you must acquit."

If the glove doesn't fit, you need to explain why it doesn't fit - or the collection and handling of all the evidence you've presented becomes suspect.

it's sad to reduce complex (and interesting) technical issues into baby talk so 8 unemployed people from the mall can pick a winner in a million dollar business dispute.

The jury trial is optional.

If you aren't comfortable with the idea, you can ask for trial before a judge.

It won't be eight unemployed people from the mall.

The jury pool will be weighted in favor of vigorous, literate, long term residents of their district. Juror Qualifications, Exemptions and Excuses

Typically, middle-aged, middle class, small-C conservatives who believe in the process and want to be a part of it.

The weeding-out will continue on from there.

It seems to me that is a different thing than the original statement, "Attorney's eyes only". . . . "Attorney's eyes only" either means what it says, or it does not.

I can't disagree with you there. What the original poster didn't mention is that "Attorneys' eyes only" means what the protective order says "Attorneys' eyes only" means. You have to look to the protective order itself to see what exceptions exist to allow outside experts to view the material.

In this case, the exception is found in paragraph 9 of the protective order (PACER access required; the cost for the document is $1.92 - goes to $0 if you don't download $10 worth of documents by the end of the year):

9. For purposes of this Protective Order, a consultant or expert shall be defined as a person who is neither an employee, agent or representative of a party, nor anticipated to become an employee, agent or representative of a party in the near future, who is not involved in the application or prosecution of patents for the party, and who is retained or employed to assist in the preparation for trial in this litigation, whether full or part time, by or at the direction of counsel for a party. The procedure for having a consultant or expert approved for access to confidential material designated as CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY - SOURCE CODE under this Protective Order shalI be as follows:

a. Outside counsel for the receiving party shall (1) provide the consultant or expert with a copy of this Protective Order, (2) explain its terns, and (3) obtain the written agreement of the consultant or expert, in the form of Exhibit A hereto, to comply with and be bound by the terms of this Protective Order. Before providing information designated CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY - SOURCE CODE by a producing party pursuant to this Protective Order to a consultant or expert, the party seeking to disclose the information to a consultant or cxpert shall identify the consultant or expert to the producing party in writing and provide the producing party with (a) an executed Exhibit A, and (b) a written statement setting forth the consultant's or expert's residence address, business address, employer, job title, curriculum vitae, and past or present association with any party, as well as a list of litigation matters for which the consultant or expert has provided any professional services during the preceding five years;

b. Five (5) court days following the identification specified in the preceding subparagraph, the identifying party may disclose the information designated CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY - SOURCE CODE under this Protective Order to the identified consultant or expert unless the party receives a written objection to the identification, served by facsimile or electronic mail, setting forth in detail the grounds on which it is based. Failure to object within five (5) days of the identification shall be deemed a waiver of the objection. If an identifying party receives such an objection within five (5) days of the identification, the consultant or expert shall be barred from access to any information designated CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY - SOURCE CODE under this Protective Order for fourteen (14) calendar days commencing with the receipt by the producing party of a copy of the executed Exhibit A and accompanying information required in subparagraph (a) above;

c. If within fourteen (14) calendar days, the parties are unable to resolve their differences and the opposing party moves for a further protective order preventing disclosure of information designated CONFIDENTIAL, H

It seems to me that is a different thing than the original statement, "Attorney's eyes only". . . . "Attorney's eyes only" either means what it says, or it does not.

I can't disagree with you there. What the original poster didn't mention is that "Attorneys' eyes only" means what the protective order says "Attorneys' eyes only" means. You have to look to the protective order itself to see what exceptions exist to allow outside experts to view the material.

In this case, the exception is found in paragraph 9 of the protective order (PACER access required; the cost for the document is $1.92 - goes to $0 if you don't download $10 worth of documents by the end of the year):

9. For purposes of this Protective Order, a consultant or expert shall be defined as a person who is neither an employee, agent or representative of a party, nor anticipated to become an employee, agent or representative of a party in the near future, who is not involved in the application or prosecution of patents for the party, and who is retained or employed to assist in the preparation for trial in this litigation, whether full or part time, by or at the direction of counsel for a party. The procedure for having a consultant or expert approved for access to confidential material designated as CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY - SOURCE CODE under this Protective Order shalI be as follows:

a. Outside counsel for the receiving party shall (1) provide the consultant or expert with a copy of this Protective Order, (2) explain its terns, and (3) obtain the written agreement of the consultant or expert, in the form of Exhibit A hereto, to comply with and be bound by the terms of this Protective Order. Before providing information designated CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY - SOURCE CODE by a producing party pursuant to this Protective Order to a consultant or expert, the party seeking to disclose the information to a consultant or cxpert shall identify the consultant or expert to the producing party in writing and provide the producing party with (a) an executed Exhibit A, and (b) a written statement setting forth the consultant's or expert's residence address, business address, employer, job title, curriculum vitae, and past or present association with any party, as well as a list of litigation matters for which the consultant or expert has provided any professional services during the preceding five years;

b. Five (5) court days following the identification specified in the preceding subparagraph, the identifying party may disclose the information designated CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY - SOURCE CODE under this Protective Order to the identified consultant or expert unless the party receives a written objection to the identification, served by facsimile or electronic mail, setting forth in detail the grounds on which it is based. Failure to object within five (5) days of the identification shall be deemed a waiver of the objection. If an identifying party receives such an objection within five (5) days of the identification, the consultant or expert shall be barred from access to any information designated CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY - SOURCE CODE under this Protective Order for fourteen (14) calendar days commencing with the receipt by the producing party of a copy of the executed Exhibit A and accompanying information required in subparagraph (a) above;

c. If within fourteen (14) calendar days, the parties are unable to resolve their differences and the opposing party moves for a further protective order preventing disclosure of information designated CONFIDENTIAL, H

Full text of the case, Comcast Corporation v. FCC, available here: http://pacer.cadc.uscourts.gov/common/opinions/200908/08-1114-1203454.pdf. The case was heard by a three-judge panel of the Court of Appeals for the District of Columbia. Douglas Ginsburg wrote the opinion, joined by Brett Kavanaugh and Raymond Randolph.

The decision is here.

It explicitly sets down a rule applying to *all* electronic media search warrants (though it will only apply to federal courts in the 9th circuit). The ruling's core is about the method of electronic searches and the plain sight doctrine, and eviscerates the usage of the latter for electronic media :

In general, we adopt Tamura's solution to the problem
of necessary over-seizing of evidence: When the government
wishes to obtain a warrant to examine a computer hard
drive or electronic storage medium in searching for certain
incriminating files, or when a search for evidence could result
in the seizure of a computer, see, e.g., United States v. Giberson,
527 F.3d 882 (9th Cir. 2008), magistrate judges must be
UNITED STATES v. COMPREHENSIVE DRUG TESTING, INC. 11891
vigilant in observing the guidance we have set out throughout
our opinion, which can be summed up as follows:
1. Magistrates should insist that the government waive reliance
upon the plain view doctrine in digital evidence cases.
See p. 11876 supra.
2. Segregation and redaction must be either done by specialized
personnel or an independent third party. See pp.
11880-81 supra. If the segregation is to be done by government
computer personnel, it must agree in the warrant application
that the computer personnel will not disclose to the
investigators any information other than that which is the target
of the warrant.
3. Warrants and subpoenas must disclose the actual risks of
destruction of information as well as prior efforts to seize that
information in other judicial fora. See pp. 11877-78, 11886-87
supra.
4. The government's search protocol must be designed to
uncover only the information for which it has probable cause,
and only that information may be examined by the case
agents. See pp. 11878, 11880-81 supra.
5. The government must destroy or, if the recipient may
lawfully possess it, return non-responsive data, keeping the
issuing magistrate informed about when it has done so and
what it has kept. See p. 11881-82 supra.

So while it hasn't changed the plain sight doctrine per se, it's basically ordered magistrates to require cops to not use the plain sight doctrine when issuing a warrant for electronic data, among other restrictions to help ensure privacy. (Tamura is about a set of restrictions around searching things like filing cabinets, which have some of the same issues with the "plain sight" doctrine). Orin Kerr has a good post about the decision, which is part of a series of posts he's done on the situation.

So it's an extremely important case for computer privacy, at least in the 9th circuit, although it will probably end up being reviewed by the Supreme Court.

Also, I have no idea why "database records" keeps coming up; the records searched were an excel sheet. The summary is terrible.

Gordon v. Virtumundo (PDF)
Reading to the very bottom, it was signed by John C. Coughenour, United States District Judge.

http://www.wawd.uscourts.gov/CourthouseInformation/DistrictJudges.htm#JCC:

Judge John C. Coughenour
U.S. Courthouse
700 Stewart Street
Seattle, WA 98101-9906

        * Chambers: 206-370-8800
        * Courtroom Deputy: 206-370-8805
        * Docket Clerk: 206-370-8450
        * E-mail Address (proposed orders only):
        coughenourorders@wawd.uscourts.gov

I can create custom XML with any text editor. i4i, whether they realise it or not, have just completely destroyed the proprietary software industry in one fell swoop.

I think you may be overreacting a bit. Whether the patent is valid or not (an appellate decision might prove that it is not), it certainly isn't as broad in scope as you are suggesting. Microsoft may end up having to remove some infrequently used functionality from Word, but the software industry as we know it is not going to come to an end because of this injunction.

The courts just don't have a clue. They do not realise the implications of this decision. Multi-billion dollar implications. The death of an entire industry implications. Lawyers will never understand science and should stop pretending they do. The DNA thing is another example, I have been telling them that for years.

Before characterizing the courts as completely clueless, you might want to go through the court's memorandum opinion and order (PACER registration required, but no cost for this document) denying Microsoft's motion for judgment as a matter of law. It is a detailed memorandum (65 pages, double-spaced, 12-pt font) that gives quite a bit of detail as to why the judge decided to uphold the jury's verdict. Go through it and decide for yourself whether the evidence and arguments presented by Microsoft were so convincing that no reasonably jury would have found for i4i.

The law has no place in science. None. To paraphrase a great Canadian: The law has no place in the laboratories of the nation.

Cute, but seriously, take a closer look at what the real issues are in this case. If you don't try to understand the facts that drive a particular case, your arguments regarding the law and the way courts apply it will sound more like pseudoscience than science. Good science is based on facts. Good legal arguments are based on facts too.

Sorry, try this link: https://pacer.uspci.uscourts.gov/cgi-bin/menu.pl

I posted the relevant passage from the opinion below. Title is "Mischaracterization" by anonymous coward. Anyone can sign up for PACER and opinions are free. http://www.txed.uscourts.gov/

You can't square it with the Supremacy Clause, he's just an idiot.

The Chief Judge of the United States District Court, District of Wyoming, discusses the case here: http://www.wyd.uscourts.gov/pdfforms/96cv99.pdf

You'd like to see a sadistic murderer sociopath who has no respect for the Constitution or our nation to be the Secretary of Homeland Security? Really?

Then again, you also seem to hate the Constitution pretty strongly, since you have ignored the Supremacy Clause (Article VI, Section 2), which states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.

Sure, the WordPress site you link says differently. It's nonetheless wrong - perhaps you should learn not to take your legal advice from blogs created by people who hate law? As the judge in the case you are referring to, Castaneda v. U.S., states:

We have learned that it has been reported, erroneously, that the court made a legal
ruling in the Castaneda case regarding the authority of federal law enforcement officials
to conduct operations in the County. There was no such ruling or decision. Instead, the
court simply granted a motion, submitted jointly by all the parties, to dismiss the case
because the parties had settled.

This Court has never issued an order which would serve to limit the lawful activities and
duties of federal law enforcement officers and other federal employees in the District of
Wyoming.

Furthermore, this Court has never made the comments attributed to it which purports to
advise state officers they can prohibit federal law enforcement officers or agents from
entering a Wyoming County. Those alleged quotations are utterly false.

Any person who interferes with federal officers in performance of their duties subjects
themselves to the risk of criminal prosecution.

In short, your post is bad and you should feel bad.

What it costs is a good question. My low rent hosting charges a US penny per 10 Megabytes. How big are the PDFs? Are they incorporating the costs for personnel to submit the papers to their site? Are you sure it is 3 cents? According to this, it is 8 cents per page (but free if you don't use more than $10/year worth, and the cost is capped to $2.40/document.) That seems a bit more steep to me, especialy considering they classify a search which returns no results as a "page."

I used to think that too, but you're confusing PACER and CM/ECF. If you go to PACER, you can search all districts at the same time. https://pacer.login.uscourts.gov/cgi-bin/login.pl

no fee is owed until a user accrues more than $10 worth of charges in a calendar year.

http://pacer.psc.uscourts.gov/pacerdesc.html

We just need a bunch of people to sign up and start accessing documents.

The fee structure is outdated now, but it made sense at the time PACER was first implemented as a cost-offsetting measure. These records are public, but the required labor and overhead must be accounted for. It's either use a per-use fee, or a dip into tax revenue.

The initial fee in $1 per minute in 1990. By 1996 it was down to 75Â per minute; in 1997 it moved to 7Â per page. http://pacer.psc.uscourts.gov/documents/epachron.pdf Now PACER's revenue generates a lot more than its administrative costs, by $150 million last year, according to NYT reporter John Schwartz. http://en.wikipedia.org/wiki/PACER_(law)

The excess is supposedly used for court IT. It appears that their current focus is understandably on ECF, while non-court uses for court-generated material (any other public use, essentially) is deprioritized. While I applaud the increased public access, I hope Recap doesn't make too much of a dent on the excess PACER revenue. The US Courts IT budget is underfunded enough as it is.

Bypassing one of the few Federal programs designed to pay for itself via fees from people who can afford to pay them.

By that reasoning, they should charge $100 per page then? After all, the folks who access them can afford them, right?

These are court documents - something that should be monitored by the public. The same goes for any legislative actions. To charge for access is to restrict access - it adds a barrier to viewing them, just like FOIA, with all of it's hoops one has to jump through, restricts access in a way. Government needs to be transparent and these back hand ways of obfuscating what the system is doing does nothing in that regard. I am NOT saying that was what the intention of these charges were, I am saying that is the effect of said charges.

I don't understand why there is a paywall in the first place. I thought all government records should be available for free through a FOIA request.

They probably are, but FOIA is a long and timely process. Surely for court documents that do not require any review before release, there could be an easier way? From PACER's FAQ:

Why are there user fees for PACER?
In 1988, the Judiciary sought funding through the appropriation process to establish the capability to provide electronic public access services. Rather than appropriating additional funds for this purpose, Congress specifically directed the Judiciary to fund that initiative through the collection of user fees. As a result, the program relies exclusively on fee revenue.

The fee is eight cents per page you wish to view. While I don't agree with this now, I could maybe see how in 1988 this nominal fee would be needed for the transfer of this data. Today, bandwidth is cheap for documents. Bring on the Firefox extension and public.resource.org hosting! I think they should allow a bidding contract with "free" being the only option ... I'm guessing Google and Scribd and many others could make enough off the ads to host everything without blinking an eye. Hell, Google's doing it for patents, why not federal court documents?

Bypassing one of the few Federal programs designed to pay for itself via fees from people who can afford to pay them.

The problem is none of these are equivalent to the 'crime' in question. We're not talking about the digital equivalent of breaking and entering into a locked store in the middle of the night.

We're talking about the digital equivalent of being invited onto property during the course of doing public business during standard business hours, then having the manager accuse you of breaking and entering - and asserting that merely because the door was unlocked and you were doing standard business during standard business hours, you are still breaking and entering.

And having the Judge somehow find this logical.

Three things badly need to happen.

A) The courts need to overturn several dumb on the face of them precedents that are holding consumers to contracts in ways expressly forbidden by the Uniform Commercial Code. There are all sorts of shortcuts available 'Between Merchants' that are exceptions applied to make doing business convenient. Unfortunately, the coursts have expressly said that these distinctions are a pain to decide on, so they treat everyone as a merchant - the exact opposite of what the UCC actually reads where the consumer protections are actually clearly written in the main text and the merchants are clearly listed as exceptions.

B) The "Owner of a Copy" Provisions of copyright need to be enforced. I wish the term were defined properly in USC 17 definitions like it should be, but there are provisions throughout the copyright act that explicitly limit the whole "You don't own a copy, you own a license" argument - spells them out in black and white. The courts have flat out ignored them.

C) Courts that think UCC code shouldn't apply to License agreements should quit writing wonderfully sarcastic opinions about the UCC and software licenses that ignore the actual wording of the UCC as written is favor of enforcing illegal agreements and say that there is no such legal document as a 'license'. If it's a contract, enforce it as a contract. If it's not a contract, don't enforce it - but don't treat the UCC as a smorgasboard and pick the paragraph you like.

Sorry - I'm about disgusted with the number of frankly stupid legal opinions about licenses and copyright - I used to buy into the "Well, copyright is a really specialized part of the law" arguments I heard, but with the exception of the deliberately vague 'fair use' tests, UCC and copyright law are written clearly - the problem here is court precedents that ignore perfectly plain use of well defined language.

Pug

• Shroyer v. New Cingular Wireless Servs., 498 F.3d 976, 983 (9th Cir. 2007), available at http://www.ca9.uscourts.gov/datastore/opinions/2007/08/17/0655964.pdf
• Discover Bank v. Superior Court, 36 Cal. 4th 148, 162-63, 30 Cal. Rptr. 3d 76, 113 P.3d 1100 (2005) available at http://login.findlaw.com/scripts/callaw?dest=ca/cal4th/36/148.html (login required)

I'm not sure how it works in other states.

This is a site with microtransactions:

http://pacer.psc.uscourts.gov/pacerdesc.html

Yes, the US government runs the site. PACER is intended to give access to court documents, however, to protect the business models of Westlaw and Lexis-Nexis there is an $0.08 charge per page, for both legal filings and for varying definitions of a page for many HTML rendered pages.

In the last quarterly billing cycle I managed to generate $38 in fees, so yes microtransactions do suck and are an extremely bad idea.

Ray--if I was ordered by a judge to produce a detailed breakdown of my accounting (say a trial for tax evasion) practices over the past years by 7/31, and on the 31st I came to court with just a "protective order motion" asking that my accounting practices be kept secret...

Wouldn't I be held in contempt?

IANNYCL, but the awnser is no. A protective order does not prevent your opponent from using the information produced as part of the trial, it keeps your opponent from sharing the information outside the context of the trial.

Judge Gertner was not happy here because the plaintiffs' lawyers moved for a protective order, arguing for protection of a subset of the information, but gave her a proposed protective order (login and $0.72 required) with much broader scope. For example, it allowed for documents previously produced to be retroactively protected:

7. Documents previously produced shall be retroactively designated by notice in writing of the designated class of each document by Bates number within ten (10) days of the entry of this order. Documents unintentionally produced without designation as "Confidential" may be retroactively designated in the same manner and shall be treated appropriately from the date written notice of the designation is provided to the receiving party.

The Judge still gave them a protective order, but it was more limited than their proposed protective order. In particular, she didn't provide for protection of their revenue figures. Perhaps if they ad they shown that they had procedures in place to prevent the revenue figures from getting back to their clients, then she might have been willing to protect this information. But they did not, so she did not.

You're right I was addressing the specific issue of "virtual child porn"; but in cases where the material is determined to be "obscene," it is not protected; that's really a separate issue from the child porn laws. Of course, the definition of "obscenity" is slippery at best, and the Christopher Handley case is a grim reminder of when that goes awry. But if it went to the Supreme Court or if the lower court actually followed precedent, I can't imagine his case not getting thrown out (based on what little I know about it).

Dwight Whorley, on the other hand, is a registered sex offender who was caught downloading real child porn. He also downloaded 20 anime pics. He argued the anime was free speech but the court thought it was obscene. The PROTECT Act - which Congress passed in order to beat its way around the Ashcroft decision I mentioned above - says that cartoon depictions of child porn are illegal only if they are also deemed "obscene." You can read the court opinion here.

Now, this might seem like side-stepping to you, and I would agree, but the point is it all revolves around the question of defining "obscenity." Until the Court moves beyond that notion entirely -- not likely to happen in my lifetime. But "obscenity" has NEVER received first amendment protection -- whether it is actual photos, cartoon drawings, or ASCII text.

Ah, another individual who didn't think the summary told the whole story. Here are a couple more links:

The appellate court ruling

The case summary from Wikipedia: United States vs. Extreme Associates

I usually don't criticize on these kind of things but honestly, but would it take all that long to do just a little more digging before posting the story? (Yes, I realize it is easier to get readers to the rest of the work :-P).

... Here it is: http://www.ca9.uscourts.gov/datastore/opinions/2009/06/25/07-35800.pdf

On a related note, see

United States of America v. $124,700, in U.S. Currency, United States Court of Appeals for the Eight Circuit, No. 05-3295, August 18, 2006.

First the court will have its expenses covered,

Which don't really amount to a hill of beans compared to what lawyers bill.
US Court Fees

IANAL, but I do read a heck of a lot.

My guess is the Noerr-Pennington doctrine. I expect that Anderson tried to define "all recipients of demand letters" as a class, and RIAA argued that that can not constitute a class because it has immunity under Noerr-Pennington, per Sosa v. DIRECTV, Inc. 1684 (2006):

http://www.ca9.uscourts.gov/datastore/opinions/2006/02/14/0455036.pdf

Probably, the specific interpretation of BE&K Construction Co. v. NLRB, 536 U.S. 516, 525 (2002). The argument would be that if the lawsuit was able to impose RICO liability on RIAA for sending the demand letter, then it would burden RIAA's ability to settle legal claims short of filing a lawsuit. RICO specifically provides for private enforcement and treble damages.

This is all predicated on the demand letters being specifically for no more than treble actual damages, so it may not apply if RIAA was asking for statutory damages (which they were). There is also some question as to whether the demand letters were objectively baseless and thus fall within the doctrine's sham exception. So I see at least two ways to fight a dismissal on direct.

-- Terry

34K on a default judgment? Default judgment means he lost because he never showed up. How did you spend this much against a guy who never showed up to defend himself?

Create a PACER account and look up "Fortuny, Jason" in the U.S. Party/Case Index to find the history of the case (there is a charge of $0.08 per page, but I believe it is waived if your total is under something like $10 / year). There are 46 documents entered as part of this case. Not all of them were written by the plaintiff's lawyers, but a good chunk of them were. And the plaintiff's lawyers had to read the documents that they didn't write.

First, the plaintiff's lawyers had to write a complaint (no complaint, no case). Fortuny made it difficult for the plaintiff's lawyers to serve him, so they made an argument that he had actual notice of the complaint (the point of service) and could be fairly brought under the court's jurisdiction.

Fortuny wrote an informal letter to the court, which the court treated as a motion to dismiss. The plaintiff's lawyers modified their complaint and argued that the court should not dismiss the case.

Some more motions were made for various reasons, ultimately leading to Fortuny's loss. I think there were at least two or three hearings that the plaintiff's lawyers showed up for that Fortuny did not show up for.

Making arguments takes time. Preparing to show up in court and then showing up in court takes time (even when the other side doesn't show). When legal fees are over $200 / hour, the costs add up quickly (at $200 / hour, $34,000 is only about one non-mythical man-month of work).

There is one flaw that I see in the Safe Harbor provisions, and that flaw is simply that there is no recourse against a false claim of infringement. Processing these requests does cost time, money, and at least some period where content can be made unavailable.

Au contraire, subsection (f) of the various safe harbors states that:

Any person who knowingly materially misrepresents under this section--
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

This provision was used in Online Policy Group v. Diebold in an order finding Diebold liable for misuse of the DMCA (Diebold settled). Then there is the ongoing case of Stephanie Lenz. Last August the court kept her 512(f) claim against Universal open, but it is not clear whether the court will find Universal liable and, if so, for how much.

Perhaps it should be necessary to post a bond for the maximum amount of "claimed damages" prior to sending the notice, just to prevent damage to innocent non-infringers?

It is an interesting idea. Of course, laws generally are supposed to be, and should be, neutral with regards to the parties who bring claims. A bond requirement would probably hurt those with empty pockets more than those with deep pockets. Moreover, if a bond had to be posted for every notice submitted, then all copyright infringers would have to do to multiple the amount of money required up front would be to post the infringed work on many different sites (doing that already has the effect of making it difficult to find all infringing copies of a work).

There is one flaw that I see in the Safe Harbor provisions, and that flaw is simply that there is no recourse against a false claim of infringement. Processing these requests does cost time, money, and at least some period where content can be made unavailable.

Au contraire, subsection (f) of the various safe harbors states that:

Any person who knowingly materially misrepresents under this section--
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

This provision was used in Online Policy Group v. Diebold in an order finding Diebold liable for misuse of the DMCA (Diebold settled). Then there is the ongoing case of Stephanie Lenz. Last August the court kept her 512(f) claim against Universal open, but it is not clear whether the court will find Universal liable and, if so, for how much.

Perhaps it should be necessary to post a bond for the maximum amount of "claimed damages" prior to sending the notice, just to prevent damage to innocent non-infringers?

It is an interesting idea. Of course, laws generally are supposed to be, and should be, neutral with regards to the parties who bring claims. A bond requirement would probably hurt those with empty pockets more than those with deep pockets. Moreover, if a bond had to be posted for every notice submitted, then all copyright infringers would have to do to multiple the amount of money required up front would be to post the infringed work on many different sites (doing that already has the effect of making it difficult to find all infringing copies of a work).

Now, maybe you're in the U.K. or somewhere in Europe, but my understanding is, at least in the U.S., is that truth is an absolute defense. You can say anything about someone, no matter how malicious you use it, as long as it is true.

Depends. In some states, that truth must be without malice to serve as a complete defense. Massachusetts is such a state.

Now, if you've got case law or some statute law to the contrary I'd love to hear about it.

Relevant statute: Mass. Gen. Laws ch. 231, section 92.

Case-type law: Noonan v. Staples (.pdf warning).

The article is correct when it states that the proposals are legislative pandering. The article is incorrect when it (sarcastically, as I read it) states that a "sin tax" on violent video games is a viable compromise. That doesn't mean that these sorts of proposals couldn't be enacted into law, or cause some momentary angst. However, since there's money involved, you can be sure that any state enacting such a law wouldn't end up collecting an additional cent.

We should all recall that pesky First Amendment to the Constitution. Now, while there are those who think that the First Amendment can justify almost anything, there are also those who have a legitimate basis for thinking that the First Amendment requires most laws to be content neutral in the way in which they affect speech, even "videogame speech."

If you've been tracking the "violent videogames" issue over the last few years, you know that laws restricting the distribution of violent and sexually explicit games have been routinely struck down as violating the First Amendment due to the requirement that they pass "strict scrutiny." Strict scrutiny requires that the law support a "compelling interest" and be "narrowly tailored" in order to achieve that compelling interest without unreasonable adverse side-effects.

Surprise, surprise -- a tax is simply another law. Even a Reagan-era Supreme Court (excepting Rhenquist and Scalia, who only cited cases involving credits and deductions) has held that discriminatory taxes must survive strict scrutiny. Given the tenor of prior Federal Court decisions concerning selective bans on the distribution of videogames to minors, I believe that you can reasonably predict that decisions concerning selective taxes on sales of videogames to minors and adults will be struck down as well.

If you was to see the text they are debating see section 83.3 in Local Rules of the United States District for the District of Massachusetts.

United State of America v. $124,700 05-3295

Actually, in the UK, truth is a strict defense against libel. Holocaust Denier David Irving sued Deborah Lipstadt over the UK edition of her book, Denying the Holocaust, in which she called Irving

a Holocaust denier, falsifier, and bigot, and said that he manipulated and distorted real documents.

Irving lost after a trial in which his scholarship on the Holocaust was shown to be fraudulent and he was demonstrated to be a bigot.

http://en.wikipedia.org/wiki/David_Irving#Libel_suit

In the U.S., truth is not a strict defense against libel:

For example, the U.S. 1st Circuit Court of Appeals ruled in February 2009 in the case of Noonan v. Staples, that even a true statement, if made with malicious intent, could stand as the basis of a defamation suit, based on a clause in Massachusetts libel law, allowing libel suits for true claims made in "actual malice."

Your belief above that honestly believing something is sufficient, is not strictly true: It depends upon the jurisdiction you're in.

It seems that the issue here is not just defamation and truth but also invasion of privacy. Even exposing truthful information can open one to a tort if that information is considered private and there is no reason to communicate it to third parties. In this case the court found it particularly troubling that the company violated its own policy on privacy when sending the email.

The other problem mentioned in the court opinion itself there was also a false light issue -- even if the content of the email was true, strictly speaking, it falsely led readers to believe that Noonan not only was fired but also violated the law.

Ultimately though the court was persuaded that even if the statement was true, it was made with "actual malice." The relevant Mass. law already has an exception built into defamation law that says a true statement can still be libelous if it is made with "actual malice," and they concluded in this case that the statement was made with such intent. The definition of actual malice the court settles on is quite different from the definition generally used in US law -- rather than "reckless disregard for truth," the court concludes that it means something like "ill will." It is this definition of "actual malice" that may undermine traditional interpretations of libel law. The notion that "truth as a defense" is undermined by this case is probably an exaggeration -- that defense is already undermined by the exemption itself as it exists in Massachusetts law.

Specifically, felony offenses disqualify someone from serving on jury duty. So I would expect there to be 0 people convicted of felony drug offenses and 0 people convicted of felony murder offenses. Now my opinion on whether or not drug offenses should be federal or not are a complete different subject.

In the US, truth is a defense, as I stated above. While one can get to trial suing over a true statement, he cannot win if the speaker can show that it was true.

Hrm; I could be misunderstanding the word "actionable"; I was under the impression that it meant, more or less, "can get to trial". In any case, I mainly intended to clarify that making a true statement isn't necessarily a shield; sufficient proof of truth is.

The "malice" factors are for federal constitutional law, which puts first amendment limits on defamation actions by public figures.

Check out Noonan v. Staples . Massachusettes is a state, last time I checked, and includes a malice requirement.

I thought courts were a sort of mecca for low tech methods.

Not true, at least for US Federal as well as many state and local courts.

They use court stenographers...

Who have been using computers for twenty years to my certain knowledge.

...video taping is very limited...

Video tape depositions are routine.

...and it's all based on the spoken word.

Actually it's mostly based on the written word. It is the court record that matters, and that means what the stenographer keyed into her computer in addition to the orders signed by the judge and the documents filed by the parties.

It's not like the prosecutor is going to talk through a Powerpoint presentation to make his/her case.

Yes, as a matter of fact, it can be rather like that. And many Federal courts require that filings be made in electronic form. Here is a link .

I suppose the only two solutions to this problem are...(2) to require senators to have a staff of 20 each, whose sole job is to review new bills and provide "cliff notes" for the senators, that catch all the little gotchas that have been hidden.

Unpaid interns are CHEAP CHEAP CHEAP. In a regular 40 hr work week 8 aides would only have to read 100 pages each, which (100 pages) can be done in probably 2-3 hours if you're just flipping through speed reading and highlighting important/suspicious parts. Heck one person could do it as a full time job no problem and still have time for 2 hour lunches and still have plenty of time to write up a 10 page summary of that week's legislation. Mosy legislators have at least two aides.
 
 

The problem is the process itself is fundamentally flawed. It was developed for a country in 1776, not 2009, and it didn't scale well enough.

The biggest problem is kind of weird, actually. We have 500-odd congressmen representing 300 million simply because you can't fit more desks into the legislative room. Sometime around 1900, congressmen stopped representing a fixed number of people/area and their constituency and power started to grow. This isn't a huge issue for smaller states like Vermont, Montana, Wyoming, Nebraska (three congressmen!) and other states, but states like California, Texas and New York are seriously undeserved. This is where congress starts to break down, and is the root of under-accountability. Build a bigger legislative meeting room, shrink the size of the desks, there are lots of solutions besides making a second tier of federal legislative districts similar to how there are federal court appeal circuits.

Damn meist3r, you are absolutely right since Judge Gertner's courtroom 2 seems to be indeed a very nice one. With extra big plasmas and a bunch of 15 inchers for the jury and "you can even connect your apple [if you have the necessary adapter]" according to the description of her courtroom!
  "The courtroom is equipped with a fully integrated evidence presentation system with 15" viewing monitors for each attorney table, the witness, the Judge and their staff, and a 40" plasma for the gallery. The jury box also has 15" monitors built into the front and back rows of the jury box, one for every two jurors. Evidence being displayed from any source can be annotated from the witness, lectern, and Judges monitors. All attorney tables have the ability to connect both audio and video from a computer through a standard VGA port [laptop/desktop and even Mac/Apple if you have the VGA adapter]. In addition, there are two computer audio and video inputs located at the lectern location. Also at the lectern, is a document camera for displaying physical evidence that is not electronic and a VCR/DVD combo unit. This courtroom has a built in video conference system for remote appearances and a 62" rear projection smart board." http://www.mad.uscourts.gov/boston/gertner.htm

lets hope she has some US marshals against those RIAA-Mobsters!

--
A_F

Similar cases like this are popping up all over the country. I did some research awhile ago and found a case in Pennsylvania, Klump vs. Nazareth, and the courts actually found the school guilty of violating the students' privacy and constitutional rights by looking at the contents of their phone. This case basically stated that although the school can have a no cell phone use policy, it does not give the school or school officials the privilege to search the contents of the phone at will unless it is believed that the student is using the phone to violate another policy (IE: using the phone to cheat). The point is, in order for any school official to search cell phone contents, the student would have to be violating another policy other than the no cell phone use policy. Being that this case is also in PA, it could be used as case law and charges would most likely be thrown out. PDF here: http://www.paed.uscourts.gov/documents/opinions/06D0400P.pdf

wished I had know what you have expressed so far when I was your age so good for you

I wish I had known it when I was 21 instead of 27. Didn't really get into good financial shape until 2006 I'm afraid :(

First, an answer to your question: the reason I would choose the 30-year mortgage over the 15-year mortgage is that the payment is lower, so if I've fallen on hard times one month and can make the lower payment but not the higher payment, then I'm ahead. (Of course times could be so tough that I can't make the lower payment as well, but that's always the case and this way gives me some buffer.) Then, I'd pay the 15-year payment amount towards the 30-year mortgage whenever I can, so that best-case I'll still pay it off in 15 years, and will also have some buffer if I need it

That's a decent enough idea. You lose out on the better rate afforded to the 15 year mortgage but it's not usually that great of a discount (around 0.25% according to Bankrate). The only thing I would caution is to make sure that your mortgage doesn't include a prepayment penalty. I've seen quite a few of them with these penalties written into the contract. I wouldn't sign such a contract but we both know how many people sign away their lives without even reading the fine print.....

I've also sold the bi-weekly mortgage package back in college

I used both ideas when I had to borrow money to buy my car. Got a 4 year term because there was no rate difference between a 48 month vs. 36 month. Gives me a small cushion in the event that I have a bad month or two. I'm paying around $163 bi-weekly when the loan term is for a $270/mo payment. I love bi-weekly payments, they are easy to budget for (X amount out of each paycheck) and save you a fair amount of interest expense even if you don't pay any extra.

I'm glad that you've learned at such a comparatively young age that it is important.

I learned the hard way I'm afraid. Racked up a lot of debt in my younger years. Part of it was beyond my control (medical and legal expenses) but a good portion was sheer stupidity. I didn't want to file either -- but by the time my financial situation improved all of my debts had been sold to junk debt buyers whom all wanted to collect 200% to 300% of what I originally owed. It would have taken me 12 years to pay back what they claimed I owed and not a penny of it would have gone to the institutions I originally borrowed the money from. Wound up filing at the end of 2005 after my last attempt to get a reasonable settlement on my debts failed.

Going through bankruptcy wasn't a lot of fun but it sure gives you perspective. I actually have better credit now than I have at any other point in my life (FICO score of 757 according to my credit union) but I don't care. I use credit cards solely to smooth out my cash flow and haven't carried a balance since my bankruptcy. I'll have my car paid off with about 60k miles on it and should be able to rely on it for another two or three years without major maintenance bills. During that time I'll be socking away the money I spend on car payments with the intent of buying my next car with cash. I've also stockpiled about three months worth of expenses (still trying to get to three months of gross salary) in savings and short term CDs.

The only reasons I would see for borrowing money at this point would be to buy a house or go back to school. I'll probably wind up doing the former and should really do the latter before I get too much older.

I have just begun to invest using the VectorVest toolchain

That sounds pretty interesting. I'm going to take a look at that. May I ask how much you are putting into it? I haven't been investing major dollar amounts into the markets -- only what I can afford to lose and don't need access to for the next few years.

So the age old debate of how to tell art from porn has been solved? Of course not (and the terms are not mutually exclusive).

If this was on the borderline, I'd say you have a point, but chances are really good that these doujins aren't. The more extreme the fetish, the less likely a solid story or any artistic merit is involved. At any rate, unlike us, the court has actually had a chance to review the materials and has found them to be obscene. And unlike you the court knows what the legal standard for that is, which is very strict with regards to how little can be banned.

According to the decision, the doujins depicted children being raped and sodomized by adults. I very seriously doubt that this was handled in any "literary" fashion. Ultimately, it's up to the jury to decide, and the jury was presented with the full Miller standard. So why are you, an internet poster unfamiliar with the law, wiser than an entire 12 person jury?

What, did you check their birth certificates? How exactly do you claim to know the ages of fictional images?

...Seriously? Are you really that stupid?

How do you know what age the characters are? Oh, I don't know. Maybe there's a bio that tells the images. Maybe they're all in high school (or elementary school) and there's no indication that they've all been held back. Maybe it's just bleeding obvious to anyone reading the material because the entire target fetish is grossly underage girls. Lolicon as a genre doesn't involve teenagers of questionable age -- it involves children, and fans disdain mature looking women or older girls.

Again, you're pretending that all of porn is some bordercase case and can never be sensibly regulated. Lolicon isn't a borderline case at all.

"Shut up, shut up" - that's all you censorship people know, isn't it? Why don't you shut up - I don't see any artistic or literary merit in what you post, so let's say no more posts from you, or else you get to spend time in prison.

*sigh* I see that you're very tenacious in your ignorance of the law. I would like you to quit spreading FUD as a result of your gross ignorance and/or grow more informed about what the law actually is. For example, see Miller v. California, New York v. Ferber, and Ashcroft v. Free Speech Coalition. Could you please do that? Until then, you're just making an ass of yourself.

Better yet, read the decision.

Of course, it's probably true that images in museums wouldn't be affected, but then it's even more ridiculous if the same images become illegal when found on somebody's hard drive. A selectively enforced law is a bad law. And don't think that laws are never used in stupid ways - from images in art galleries, to 30 year old album covers on online encyclopedias.

Look, you very obviously do not understand the law. "Artistic merit" does not go away just because a piece exhibited in a museum is photographed and stored on a computer. I love how many geeks on this site get all up in arms, flailing about and screaming about the death of all civil liberties because they apparently believe that no one with a law degree has any common sense remaining in their heads.

Most of the law is based on clear, common sense definitions. Laws themselves might not be wise, but the people forced to apply them aren't lobotomized twits following some mechanical script. When a "bad case" comes up, generally the reporting on it misses the legal reasoning, misses the background of the case, misses the judge's own opinion of the state of the law (with many judges giving extremely strong hints that the legislature needs to fix a bad law), etc.

If you read the case, you'll find the argument here in Section V, starting on pp. 13. Whorley attempted to argue that the statute was unconstitu

Here's a link to the opinion: http://pacer.ca4.uscourts.gov/opinion.pdf/064288.P.pdf

Here's the language from the opinion:

Counts 1-20 charged Whorley with using a computer on March 30, 2004, to knowingly receive obscene cartoons in interstate and foreign commerce, in violation of 18 U.S.C. 1462. The 20 cartoons forming the basis of those counts showed prepubescent children engaging in graphic sexual acts with adults. They depicted actual intercourse, masturbation, and oral sex, some of it coerced. Based on the same cartoons, the jury also charged Whorley in Counts 21-40 under 18 U.S.C. 1466A(a)(1) with knowingly receiving, as a person previously convicted of illegally downloading child pornography, obscene visual depictions of minors engaging in sexually explicit conduct. In addition, the grand jury charged Whorley in Counts 41-55 with knowingly receiving, on March 11 and 12, 2004, 15 visual depictions of minors engaging in sexually explicit conduct, in violation of 18 U.S.C. 2252(a)(2). These counts were based on lascivious photographs of actual, naked children. Finally, the grand jury charged Whorley in Counts 56-75 with sending or receiving in interstate commerce 20 obscene e-mails during the period between February 5, 2004, and April 2, 2004, in violation of 18 U.S.C. 1462. The e-mails described sexually explicit conduct involving children, including incest and molestation by doctors.

By my read, the key factor that made these prosecutions legitimate from a First Amendment standpoint is not that they were "child pornography," but that they were obscene.

--AC