If your email contains a URL, and the URL is a link to a website on a server outside of your possession, custody or control, then of course you're not going to have a duty to preserve the web page.
If it's YOUR OWN web server, though, it's a different analysis.
Also, if you have cached a copy of the web page (say in your individual browser cache, or if your company has a caching proxy server), there is arguably a duty to preserve that cached copy.
Oops, you overwrote your cache through routine web browsing? Congratulations, the lawyers on the other side will argue that you've just committed spoliation.
I will merely make my discovery requests even more specific, demanding, and immediate. * * * Perhaps, according to your point of view, the judge doesn't "know this" quite as well as you'd like.
Right now, the default is highly burdensome for the producing/preserving party.
The proposed "safe harbor" says you can't be reckless. If you, as the plaintiff, want something more, you can take it to the court, who can assess the burden of complying with the preservation request against the potential benefit to your case.
People argue undue burden all the time. This is about changing what the default presumption is going to be.
And yes, a lot of judges out there aren't familiar with these issues.
Also, the cost of taking and saving forensic image is fairly cheap. What's expensive is having an expert review it, and the attorney time in sifting through the crud. OR, when you have 800+ desktops and laptops purportedly requiring imaging. Good bye litigation budget.
Voicemail is discoverable. And because of the way it's stored, it's an "electronic document" within most definitions.
Saner preservation plans/orders are specifying that voicemail need not be preserved. Less sane plaintiffs are trying to force people to save (and review and produce) voicemails. And yes, it costs a heck of a lot of money to do.
I think some of this discussion is lacking in context.
First, if you destroy evidence after the lawsuit gets filed (or when you enter the grey zone of when you "reasonably anticipate litigation"), you have just committed spoliation of evidence. While this makes intuitive sense - the rule prohibits a defendant from having a "shredding party" the day after a lawsuit gets filed - it becomes problematic as definitions of what constitutes "evidence" expand.
Active emails? Check. Files on network servers? Check.
Backup tapes from last night's cycle? OOPS. Yes, several court decisions/orders have taken parties to task for failing to suspend routine overwriting of backup tapes. Taken to the extreme, this means that once you get sued, you can't overwrite any of your backup tapes.
Updating databases that might result in some data (i.e., last accessed, last modified) being modified? Uhoh, better take a snapshot of that database.
Are your server logs at issue? Uhoh, better suspend rotation of your server logs.
Hey, when you TURN ON your desktop, aren't you overwriting some cache space and slack space, that might make recovery of deleted files impossible? Guess what? If the other side wants to do a forensic examination of your machines, you can't even continue using them without taking a bit-by-bit image.
And by the way -- if you miss any bit of this data, you get sanctioned. Monetary sanctions, or an adverse inference ("we don't know what was on that tape that was destroyed, but you can ASSUME it was bad!"), or even a default judgment. Yes, electronic discovery can turn into a game of "gotcha".
Think how expensive this is for a small shop with just a handful of machines. And then think what's involved for a nationwide company with, say, 80 far-flung locations and company databases.
See the problem?
The "safe harbor" to Rule 37 says that you don't sanctioned for failure to preserve information lost from ROUTINE operation of a system UNLESS THE LOSS WAS INTENTIONAL OR RECKLESS. The "reckless" hole is very large, admittedly. But the rule attempts to bring some sanity to some of the broad-reaching data preservation games being played today.
Also, note that a court can order a party to take steps above and beyond what the proposed Rule 37 requires.
gurps npc, most of the "big" electronic discovery issues to date have involved large companies with large networks and massive backups. (I guess the other cases are criminal/forensic cases, but that's another story.) Lack of duplicates of the "smoking gun" emails across the network is definitely a "smoking gun" pointing at forgery.
As the cost of full-blown electronic discovery lowers, though, I wonder whether forgery will become a bigger problem. I can think of several small companies who use their ISP's mailservers. If they're sued long after their ISP deletes files, there might legitimately be only one or two copies of a key email.
Admittedly, I've yet to see a credible forgery attempt, but I'm sure I'll see one sooner or later. Thoughts?
I agree that the proposed rule allows for a lot of flexibility, and that there's no way to render a relational database or a sound file to TIFF or PDF. I think the rule will quash games like trying to foist a printout of a relational database (or, even better yet, a DLL file (been there, done that)). I've already gotten into fights over the (lack of) utility of printouts of excel spreadsheets.
But for document review/production of "standard" files - and by that I'm thinking of email and word documents - TIFF/metadata database can still be cheaper, especially if you've already sunk money into existing tools. I don't think this is going to be like VHS/Betamax. My crystal ball is foggy, but I have a suspicion that there will be room in the industry for vendors with both types of models.
In the case of e-mail, parties will almost always agree to produce them in a static format, often for a particular date range, because it's just about completely impractical to review them natively due to the large number of duplicates; SPAM; the general signal to noise ratio inherent to e-mail; and a host of other reasons, not least of which being the messaging platform in question which often makes native review by a third party impractical and expensive if not impossible. And this, of course, says nothing of backups from the mail server.
Why do you think duplicates are a problem? All of the vendors I've dealt with have pretty adequate deduplication and spam filtering. I've seen (multiple) backup tapes from the mail server merged with an NSF from a desktop, all across multiple custodians. Expensive as hell, but what's the alternative? The deduplication caught most of what we wanted it to catch, saving lots of attorney review time...
I'm curious - are you seeing a lot of cases involving audio evidence? I'm not, but maybe I just don't have the right cases.
Native format production would certainly comply with the letter and spirit of the proposed rule changes. However, I think it might be equally feasible (and desirable) to produce in TIFF/PDF with an underlying (searchable) database containing all metadata. The message, I think, is that you have to preserve and produce the underlying metadata. How you do that (native form, database) is up to you to do (and, if necessary, you have to convince the court and the other side that you've been reasonable in complying).
I think that destruction of metadata through file conversion (in your example, from converting from Wordperfect to Word format) isn't really addressed in the new rules. Is that scenario covered by the "safe harbor" in the proposed 37(f)? I don't think so, if it was done after litigation commenced and as part of a document production...
Reading through the comments, I see several people misinterpreting the nature of the rule changes.
The proposed changes are to the Federal Rules of CIVIL Procedure. This affects CIVIL lawsuits, and does not (directly) impact criminal prosecutions (for "hacking" or otherwise). The rule changes also don't have much to do with the admissibility or authentication of evidence.
Among other things, if adopted, the rule changes would do things like require electronic production of electronic records (i.e., don't bother trying to print out that database). Also, the proposed Rule 37(f) safe harbor for failure to preserve doesn't protect parties from sanctions for intentional or reckless failure to preserve information.
BZZT. You can't just cc: the legal department to cloak something in the attorney-client privilege. While that might cause an email to be flagged by a first-tier reviewer (or search algorithm) as privileged, for the privilege to truly attach, you need to be seeking legal advice.
I'm locked in to Sprint PCS for various reasons, WLNP notwithstanding. Unfortunately, Sprint has yet to offer a Bluetooth-enabled phone. Promises of the release of the Sony T608 seem like vaporware, although the latest reports indicate that it may actually be released Real Soon Now.
I think Verizon users are similarly limited in their (lack of) choices.
The Villarman-Oviedo case involves an agent testifying about drug slang. Not what most people consider "scientific", but it's admissible under the rules as expert testimony. There's nothing in the text of the opinion about him being drunk.
The Diaz case says nothing about the handwriting expert being a phrenologist. Looks like a pretty run-of-the-mill case to me. On the other hand, the Daubert on the Web website is a great resource for lawyers and those wanting to know more about this issue.
What's the ruling on one out of three? It's not enough to get you a reversal in the Court of Appeals...
Joking about messing with Texas aside, it could be a lot worse.
I mean, how about a click-through contract that required you to file any and all claims in say, the U.S. District Court for the Marianas Islands? Just another adhesive clause...
Talk about disapointing. A cool sci fi show with a good plot, good scripts and nudity! So close...
Jeremiah. It's on after Stargate on Showtime, at 10:45 PM eastern.
Don't let the fact that it stars Luke Perry and Malcolm Jamal-Warner scare you off. It's produced (and mostly written) by J. Michael Straczynski, the same guy who did Babylon 5.
Series premise is that a plague wipes out all adults, but spares the children. It's now 15 years after the "Big Death", and the kids have rebuilt, sort of. Lots of post-apocalyptic scenerey and plots, but the general theme and tone of the series is pretty hopeful.
Plus, there's ample swearing/violence -- and nudity. Not as much as the softcore porn on cable, but probably as much as the Sopranos.
The parent poster, who joked that he was buying the book used on ebay (and was modded "Funny") actually lead us to an interesting point.
Currently on sale from the seller "littlebrownandco" are two separate auctions:
The first is a "One-of-a-kind first edition signed by eBay founders Pierre Omidyar and Jeff Skoll, current CEO Meg Whitman, and author Adam Cohen." and the second is a dutch auction for a copy signed by the author. Auction descriptions state that proceeds go the the "eBay Foundation" (presumably a charity).
First, do we trust that "littlebrownandco" really is the publisher of the book? Or that the auction proceeds are going to charity? Or that it's authentic. The seller is a new user with zero feedback.
But I think the more interesting point is that the auctions themselves make the point of the review's article. Before, to get a signed edition of the book, you'd have to wait around at a book signing. (And how hard is it these days to get CEOs to sign books for the hoi polloi?) But here, just plunk down the credit card and it's yours.
Actually, the argument that income tax is voluntary is legally correct.
The income tax is a voluntary reporting system. That means that the government relies on you to calculate what you owe, and turn in your forms by April 15.
OTOH, if you don't voluntarily comply, you will be penalized.
Heckencamp sounds like he's read the standard tax evader propaganda. These are the people that argue in tax court that the Sixteenth Amendment (income tax) was never properly ratified, etc.
A good link is http://www.adl.org/mwd/suss4.htm, which collects cases smacking down defendants who, like Heckencamp, have raised an objection to their name printed in all caps. That argument is discussed in the same breath as other winning arguments like objections to a fringe on the courtroom flag or the presence of an eagle on the flagpole.
Of particular relevance may be a relatively recent case from the 10th Circuit. Pasting from the linked document: US v. M.L. Lindsay (10th Cir 7/1/99) _F3d_, 99 USTC para 50648, 84 AFTR2d 5102; (tax evader complained of "his name being in capital letters in a prior order issued by this Court and then... makes an incorrect reference to this form of using all capital letters as being proper only in reference to corporate entities. This is an incorrect statement of the law and... is illustrative of [his] continued harassing and frivolous behavior." and fined under Rule 11
Since we're talking about lawyers, let's be precise...
Law firms are prohibited from issuing stock to non-lawyers. Although the traditional law firm is set up as a partnership, some big firms are set up as limited liability corporations. Each "partner" is actually a "member" or "shareholder".
Let's say that there's a big constitutional question raised in a case, but if the court resolves another question first, the case is over. Under the rule, the court first disposes of the non-constitutional claim, and tries not to reach the constitutional law analysis.
So in the Felten case, the judge rules on justiciability first, and says the case is moot, rather than issuing a ruling on the constitutionality of the challenged portions of the DMCA.
Another example: Someone sues me for patent infringement, and I argue that (1) I didn't infringe, (2) their patent on [foo] is invalid and (3) the patent law as applied to [foo] is unconstitutional because it doesn't "promote the useful arts". Courts will address points (1) and (2) before even considering #3.
As far as I know (and I might very well be wrong) there is _no_ precedent here. Dismissals aren't legal decisions, they are a _lack_ of legal decision. No legal decision has been rendered, thus no precedent set.
Here's a lawyerly answer: It depends.
The Felten dismissal sets no precedent on the DMCA. The judge never made a ruling on the constitutionality of the DMCA, because he ruled that there was no justiciable case or controversy.
No decision on the DMCA == no binding precedent established on the DMCA.
On the other hand, if the decision is published (and it likely will be), the case will set (minor, advisory) precedent on JUSTICIABILITY issues. The court's making a decision on constitutional standing, and future courts may be bound by it.
Of course, since it's "only" a federal district case, other federal trial courts would only give it advisory, and not binding status. If the EFF takes the case up to the Third Circuit and gets the same ruling, the Third Circuit opinion (if published) would control all lower courts -- in the Third Circuit. Again, when I talk about "setting precedent" in this paragraph, I'm talking about the constitutional standing (justiciability) issue.
Moreover, dismissals are NOT just a "lack of legal decision". A dismissal, such as a summary judgment, can be entered by the court "with prejudice". These types of dismissals can operate as an adjudication on the merits, which means that the case is resolved with just as much finality as if a jury returned a defense verdict.
For anyone who's left reading this digression into civil procedure, I'll stop before getting into res judicata (claim/issue preclusion).
The courts should be reviewing every law that's passed BEFORE it goes into effect.
...and people complain about crowded courts now.
For better or worse, there's a presumption that Congress passes laws that are constitutional. As much as we might be upset by "bad" laws, do you really want to clog up the courts that way?
Who would be the party in interest? If you REQUIRE court review, you'll have to pay someone. Private attorneys? Sign me up, sounds like subsidies for bored litigators. Note that you can't use the Justice Department, since they're the ones that would have to defend the law.
Who's gonna stand up and challenge (in court) the constitutionality of laws establishing the George W. Bush presidential library, or national broccoli month?
While there are often doozies (like the DMCA, or the law outlawing flag burning) that are (arguably) unconstitutional "on their face", many of the laws that are ruled unconstitutional are ruled so because they're unconstitutional "as applied" to a particular plaintiff.
There's also that little troubling thing in the Constitution about Federal courts only having jurisdiction over actual "cases and controversies", but enough ink is being spilled over that issue with regard to the Felten case.
Your rant makes for a nice position on talk radio or for fist-pounding on the table, but if you think things through, it's nearly impossible to implement.
Re:Judge's Email Address or phone #?
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The/. crowd may be surprised, but many judges are extremely technically literate.
I've seen federal judges with laptops cross-referencing real-time transcripts of the proceedings during trial. Of course, like any large group of individuals, there are geeks and there are luddites.
The point was, however, that as a whole, federal judges simply do not care what the general populace thinks of their decisions. That's the beauty (or problem, in some people's books) of the lifetime appointment of Article III judges.
For better or worse, the founding fathers wrote it into the Constitution, and that's the system we have.
FWIW, I think it's the best alternative out there. Would we really have had a Brown v. Board of Education with an elected Supreme Court? Or the judicial compromises over abortion and the death penalty?
Felten dismissal not as bad as it sounds
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After reading the EFF press release and having read the briefs, I'd just like to point out that things aren't necessarily as bad as they sound (with respect to the Felten case).
First, I haven't seen any links to an actual published decision. So all of this is really rampant speculation. Take it for what it's worth.
It sounds like the Felten case was dismissed for lack of justiciability. The judge probably felt that there simply was no "case or controversy" as required by the Constitution for a federal judge to adjudicate a dispute.
Although the EFF filed for a declaratory judgment (which defines the rights of the party when a dispute is imminent), the judge probably felt that the issue was moot because the RIAA had withdrawn its threats, or was unripe because no actual prosecution took place.
The bottom line is that the Felten decision appears to ultimately be a civil procedure decision of interest mainly to lawyers. It does NOT appear to operate as an adjudication on the merits of the constitutionality of any part of the DMCA. Even if affirmed by the Third Circuit, it sets no binding precedent concerning the DMCA.
Is it unfortunate that the DMCA won't be stricken down immediately? Of course. The wheels of justice, for better or worse, often turn quite slowly. The judiciary doesn't react well to Internet time.
So step back a bit, breathe, and relax before crying chicken little or picking up the flamethrower.
IAAL, but this is not specific legal advice to anyone, just general ruminations about civil procedure.
Re:Judge's Email Address or phone #?
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Not to be a naysayer, but bombarding any federal judge with hate mail or crank phone calls is utterly useless.
I worked for a federal judge, and protest mail and demonstrations outside the courthouse are summarily ignored by pretty much everyone.
Anything remotely resembling a threat is likely to be taken quite unfavorably by the U.S. Marshalls, moreover.
The only lobbying likely to have any effect whatsoever is lobbying of Congress. THOSE are the elected officials who are ultimately accountable to their voting constituents.
Re:What the hell is wrong with the Judiciary
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Both of these decisions were in federal courts. The Felten case was before a federal judge in New Jersey, and the 2600 DeCSS case was before the United States Court of Appeals for the Second Circuit -- a federal appeals court.
Presumably, the Felten case will be appealed to the Third Circuit (which must take the appeal if filed), and 2600 will presumably file a cert petition with the US Supreme Court. No guarantee that the Supremes will find this one certworthy, though. Hard to tell without reading the decision...
New Jersey and New York/.'ers really have little direct say in whether these judges retain their offices.
What all US voters who oppose these decisions should do is to lobby their (federal) representatives and senators to CHANGE or REPEAL the DMCA. The anti-circumvention provisions of the DMCA were created by Congress, and can be changed by a subsequent Congress.
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If your email contains a URL, and the URL is a link to a website on a server outside of your possession, custody or control, then of course you're not going to have a duty to preserve the web page.
If it's YOUR OWN web server, though, it's a different analysis.
Also, if you have cached a copy of the web page (say in your individual browser cache, or if your company has a caching proxy server), there is arguably a duty to preserve that cached copy.
Oops, you overwrote your cache through routine web browsing? Congratulations, the lawyers on the other side will argue that you've just committed spoliation.
I will merely make my discovery requests even more specific, demanding, and immediate. * * *
Perhaps, according to your point of view, the judge doesn't "know this" quite as well as you'd like.
Right now, the default is highly burdensome for the producing/preserving party.
The proposed "safe harbor" says you can't be reckless. If you, as the plaintiff, want something more, you can take it to the court, who can assess the burden of complying with the preservation request against the potential benefit to your case.
People argue undue burden all the time. This is about changing what the default presumption is going to be.
And yes, a lot of judges out there aren't familiar with these issues.
Also, the cost of taking and saving forensic image is fairly cheap. What's expensive is having an expert review it, and the attorney time in sifting through the crud. OR, when you have 800+ desktops and laptops purportedly requiring imaging. Good bye litigation budget.
Guess what?
Voicemail is discoverable. And because of the way it's stored, it's an "electronic document" within most definitions.
Saner preservation plans/orders are specifying that voicemail need not be preserved. Less sane plaintiffs are trying to force people to save (and review and produce) voicemails. And yes, it costs a heck of a lot of money to do.
I think some of this discussion is lacking in context.
/orders have taken parties to task for failing to suspend routine overwriting of backup tapes. Taken to the extreme, this means that once you get sued, you can't overwrite any of your backup tapes.
First, if you destroy evidence after the lawsuit gets filed (or when you enter the grey zone of when you "reasonably anticipate litigation"), you have just committed spoliation of evidence. While this makes intuitive sense - the rule prohibits a defendant from having a "shredding party" the day after a lawsuit gets filed - it becomes problematic as definitions of what constitutes "evidence" expand.
Active emails? Check. Files on network servers? Check.
Backup tapes from last night's cycle? OOPS. Yes, several court decisions
Updating databases that might result in some data (i.e., last accessed, last modified) being modified? Uhoh, better take a snapshot of that database.
Are your server logs at issue? Uhoh, better suspend rotation of your server logs.
Hey, when you TURN ON your desktop, aren't you overwriting some cache space and slack space, that might make recovery of deleted files impossible? Guess what? If the other side wants to do a forensic examination of your machines, you can't even continue using them without taking a bit-by-bit image.
And by the way -- if you miss any bit of this data, you get sanctioned. Monetary sanctions, or an adverse inference ("we don't know what was on that tape that was destroyed, but you can ASSUME it was bad!"), or even a default judgment. Yes, electronic discovery can turn into a game of "gotcha".
Think how expensive this is for a small shop with just a handful of machines. And then think what's involved for a nationwide company with, say, 80 far-flung locations and company databases.
See the problem?
The "safe harbor" to Rule 37 says that you don't sanctioned for failure to preserve information lost from ROUTINE operation of a system UNLESS THE LOSS WAS INTENTIONAL OR RECKLESS. The "reckless" hole is very large, admittedly. But the rule attempts to bring some sanity to some of the broad-reaching data preservation games being played today.
Also, note that a court can order a party to take steps above and beyond what the proposed Rule 37 requires.
gurps npc, most of the "big" electronic discovery issues to date have involved large companies with large networks and massive backups. (I guess the other cases are criminal/forensic cases, but that's another story.) Lack of duplicates of the "smoking gun" emails across the network is definitely a "smoking gun" pointing at forgery.
As the cost of full-blown electronic discovery lowers, though, I wonder whether forgery will become a bigger problem. I can think of several small companies who use their ISP's mailservers. If they're sued long after their ISP deletes files, there might legitimately be only one or two copies of a key email.
Admittedly, I've yet to see a credible forgery attempt, but I'm sure I'll see one sooner or later. Thoughts?
I agree that the proposed rule allows for a lot of flexibility, and that there's no way to render a relational database or a sound file to TIFF or PDF. I think the rule will quash games like trying to foist a printout of a relational database (or, even better yet, a DLL file (been there, done that)). I've already gotten into fights over the (lack of) utility of printouts of excel spreadsheets.
But for document review/production of "standard" files - and by that I'm thinking of email and word documents - TIFF/metadata database can still be cheaper, especially if you've already sunk money into existing tools. I don't think this is going to be like VHS/Betamax. My crystal ball is foggy, but I have a suspicion that there will be room in the industry for vendors with both types of models.
Why do you think duplicates are a problem? All of the vendors I've dealt with have pretty adequate deduplication and spam filtering. I've seen (multiple) backup tapes from the mail server merged with an NSF from a desktop, all across multiple custodians. Expensive as hell, but what's the alternative? The deduplication caught most of what we wanted it to catch, saving lots of attorney review time...
I'm curious - are you seeing a lot of cases involving audio evidence? I'm not, but maybe I just don't have the right cases.
Native format production would certainly comply with the letter and spirit of the proposed rule changes. However, I think it might be equally feasible (and desirable) to produce in TIFF/PDF with an underlying (searchable) database containing all metadata. The message, I think, is that you have to preserve and produce the underlying metadata. How you do that (native form, database) is up to you to do (and, if necessary, you have to convince the court and the other side that you've been reasonable in complying).
I think that destruction of metadata through file conversion (in your example, from converting from Wordperfect to Word format) isn't really addressed in the new rules. Is that scenario covered by the "safe harbor" in the proposed 37(f)? I don't think so, if it was done after litigation commenced and as part of a document production...
Reading through the comments, I see several people misinterpreting the nature of the rule changes.
The proposed changes are to the Federal Rules of CIVIL Procedure. This affects CIVIL lawsuits, and does not (directly) impact criminal prosecutions (for "hacking" or otherwise). The rule changes also don't have much to do with the admissibility or authentication of evidence.
Among other things, if adopted, the rule changes would do things like require electronic production of electronic records (i.e., don't bother trying to print out that database). Also, the proposed Rule 37(f) safe harbor for failure to preserve doesn't protect parties from sanctions for intentional or reckless failure to preserve information.
IAAL. So, there.
BZZT. You can't just cc: the legal department to cloak something in the attorney-client privilege. While that might cause an email to be flagged by a first-tier reviewer (or search algorithm) as privileged, for the privilege to truly attach, you need to be seeking legal advice.
I think Verizon users are similarly limited in their (lack of) choices.
Nothing like choice.
WTF?
The Villarman-Oviedo case involves an agent testifying about drug slang. Not what most people consider "scientific", but it's admissible under the rules as expert testimony. There's nothing in the text of the opinion about him being drunk.
The Diaz case says nothing about the handwriting expert being a phrenologist. Looks like a pretty run-of-the-mill case to me.
On the other hand, the Daubert on the Web website is a great resource for lawyers and those wanting to know more about this issue.
What's the ruling on one out of three? It's not enough to get you a reversal in the Court of Appeals...
Joking about messing with Texas aside, it could be a lot worse.
I mean, how about a click-through contract that required you to file any and all claims in say, the U.S. District Court for the Marianas Islands? Just another adhesive clause...
Talk about disapointing. A cool sci fi show with a good plot, good scripts and nudity! So close ...
Jeremiah. It's on after Stargate on Showtime, at 10:45 PM eastern.
Don't let the fact that it stars Luke Perry and Malcolm Jamal-Warner scare you off. It's produced (and mostly written) by J. Michael Straczynski, the same guy who did Babylon 5.
Series premise is that a plague wipes out all adults, but spares the children. It's now 15 years after the "Big Death", and the kids have rebuilt, sort of. Lots of post-apocalyptic scenerey and plots, but the general theme and tone of the series is pretty hopeful.
Plus, there's ample swearing/violence -- and nudity. Not as much as the softcore porn on cable, but probably as much as the Sopranos.
The parent poster, who joked that he was buying the book used on ebay (and was modded "Funny") actually lead us to an interesting point.
Currently on sale from the seller "littlebrownandco" are two separate auctions:
The first is a "One-of-a-kind first edition signed by eBay founders Pierre Omidyar and Jeff Skoll, current CEO Meg Whitman, and author Adam Cohen." and the second is a dutch auction for a copy signed by the author. Auction descriptions state that proceeds go the the "eBay Foundation" (presumably a charity).
First, do we trust that "littlebrownandco" really is the publisher of the book? Or that the auction proceeds are going to charity? Or that it's authentic. The seller is a new user with zero feedback.
But I think the more interesting point is that the auctions themselves make the point of the review's article. Before, to get a signed edition of the book, you'd have to wait around at a book signing. (And how hard is it these days to get CEOs to sign books for the hoi polloi?) But here, just plunk down the credit card and it's yours.
Actually, the argument that income tax is voluntary is legally correct.
The income tax is a voluntary reporting system. That means that the government relies on you to calculate what you owe, and turn in your forms by April 15.
OTOH, if you don't voluntarily comply, you will be penalized.
Heckencamp sounds like he's read the standard tax evader propaganda. These are the people that argue in tax court that the Sixteenth Amendment (income tax) was never properly ratified, etc.
... makes an incorrect reference to this form of using all capital letters as being proper only in reference to corporate entities. This is an incorrect statement of the law and ... is illustrative of [his] continued harassing and frivolous behavior." and fined under Rule 11
A good link is http://www.adl.org/mwd/suss4.htm, which collects cases smacking down defendants who, like Heckencamp, have raised an objection to their name printed in all caps. That argument is discussed in the same breath as other winning arguments like objections to a fringe on the courtroom flag or the presence of an eagle on the flagpole.
Of particular relevance may be a relatively recent case from the 10th Circuit. Pasting from the linked document:
US v. M.L. Lindsay (10th Cir 7/1/99) _F3d_, 99 USTC para 50648, 84 AFTR2d 5102; (tax evader complained of "his name being in capital letters in a prior order issued by this Court and then
Since we're talking about lawyers, let's be precise...
Law firms are prohibited from issuing stock to non-lawyers. Although the traditional law firm is set up as a partnership, some big firms are set up as limited liability corporations. Each "partner" is actually a "member" or "shareholder".
Boucher has nothing to do with UCITA's acceptance in Virginia.
Congressman Boucher is a Member of the United States Congress -- the federal legislative body.
UCITA was adopted in the state of Virginia by the Virginia General Assembly, Virginia's legislative body.
As a U.S. Representative, Boucher never voted for or against UCITA.
Let's say that there's a big constitutional question raised in a case, but if the court resolves another question first, the case is over. Under the rule, the court first disposes of the non-constitutional claim, and tries not to reach the constitutional law analysis.
So in the Felten case, the judge rules on justiciability first, and says the case is moot, rather than issuing a ruling on the constitutionality of the challenged portions of the DMCA.
Another example: Someone sues me for patent infringement, and I argue that (1) I didn't infringe, (2) their patent on [foo] is invalid and (3) the patent law as applied to [foo] is unconstitutional because it doesn't "promote the useful arts". Courts will address points (1) and (2) before even considering #3.
As far as I know (and I might very well be wrong) there is _no_ precedent here. Dismissals aren't legal decisions, they are a _lack_ of legal decision. No legal decision has been rendered, thus no precedent set.
Here's a lawyerly answer: It depends.
The Felten dismissal sets no precedent on the DMCA. The judge never made a ruling on the constitutionality of the DMCA, because he ruled that there was no justiciable case or controversy.
No decision on the DMCA == no binding precedent established on the DMCA.
On the other hand, if the decision is published (and it likely will be), the case will set (minor, advisory) precedent on JUSTICIABILITY issues. The court's making a decision on constitutional standing, and future courts may be bound by it.
Of course, since it's "only" a federal district case, other federal trial courts would only give it advisory, and not binding status. If the EFF takes the case up to the Third Circuit and gets the same ruling, the Third Circuit opinion (if published) would control all lower courts -- in the Third Circuit. Again, when I talk about "setting precedent" in this paragraph, I'm talking about the constitutional standing (justiciability) issue.
Moreover, dismissals are NOT just a "lack of legal decision". A dismissal, such as a summary judgment, can be entered by the court "with prejudice". These types of dismissals can operate as an adjudication on the merits, which means that the case is resolved with just as much finality as if a jury returned a defense verdict.
For anyone who's left reading this digression into civil procedure, I'll stop before getting into res judicata (claim/issue preclusion).
The courts should be reviewing every law that's passed BEFORE it goes into effect.
...and people complain about crowded courts now.
For better or worse, there's a presumption that Congress passes laws that are constitutional. As much as we might be upset by "bad" laws, do you really want to clog up the courts that way?
Who would be the party in interest? If you REQUIRE court review, you'll have to pay someone. Private attorneys? Sign me up, sounds like subsidies for bored litigators. Note that you can't use the Justice Department, since they're the ones that would have to defend the law.
Who's gonna stand up and challenge (in court) the constitutionality of laws establishing the George W. Bush presidential library, or national broccoli month?
While there are often doozies (like the DMCA, or the law outlawing flag burning) that are (arguably) unconstitutional "on their face", many of the laws that are ruled unconstitutional are ruled so because they're unconstitutional "as applied" to a particular plaintiff.
There's also that little troubling thing in the Constitution about Federal courts only having jurisdiction over actual "cases and controversies", but enough ink is being spilled over that issue with regard to the Felten case.
Your rant makes for a nice position on talk radio or for fist-pounding on the table, but if you think things through, it's nearly impossible to implement.
The /. crowd may be surprised, but many judges are extremely technically literate.
I've seen federal judges with laptops cross-referencing real-time transcripts of the proceedings during trial. Of course, like any large group of individuals, there are geeks and there are luddites.
The point was, however, that as a whole, federal judges simply do not care what the general populace thinks of their decisions. That's the beauty (or problem, in some people's books) of the lifetime appointment of Article III judges.
For better or worse, the founding fathers wrote it into the Constitution, and that's the system we have.
FWIW, I think it's the best alternative out there. Would we really have had a Brown v. Board of Education with an elected Supreme Court? Or the judicial compromises over abortion and the death penalty?
After reading the EFF press release and having read the briefs, I'd just like to point out that things aren't necessarily as bad as they sound (with respect to the Felten case).
First, I haven't seen any links to an actual published decision. So all of this is really rampant speculation. Take it for what it's worth.
It sounds like the Felten case was dismissed for lack of justiciability. The judge probably felt that there simply was no "case or controversy" as required by the Constitution for a federal judge to adjudicate a dispute.
Although the EFF filed for a declaratory judgment (which defines the rights of the party when a dispute is imminent), the judge probably felt that the issue was moot because the RIAA had withdrawn its threats, or was unripe because no actual prosecution took place.
The bottom line is that the Felten decision appears to ultimately be a civil procedure decision of interest mainly to lawyers. It does NOT appear to operate as an adjudication on the merits of the constitutionality of any part of the DMCA. Even if affirmed by the Third Circuit, it sets no binding precedent concerning the DMCA.
Is it unfortunate that the DMCA won't be stricken down immediately? Of course. The wheels of justice, for better or worse, often turn quite slowly. The judiciary doesn't react well to Internet time.
So step back a bit, breathe, and relax before crying chicken little or picking up the flamethrower.
IAAL, but this is not specific legal advice to anyone, just general ruminations about civil procedure.
Not to be a naysayer, but bombarding any federal judge with hate mail or crank phone calls is utterly useless.
I worked for a federal judge, and protest mail and demonstrations outside the courthouse are summarily ignored by pretty much everyone.
Anything remotely resembling a threat is likely to be taken quite unfavorably by the U.S. Marshalls, moreover.
The only lobbying likely to have any effect whatsoever is lobbying of Congress. THOSE are the elected officials who are ultimately accountable to their voting constituents.
Both of these decisions were in federal courts. The Felten case was before a federal judge in New Jersey, and the 2600 DeCSS case was before the United States Court of Appeals for the Second Circuit -- a federal appeals court.
/.'ers really have little direct say in whether these judges retain their offices.
Presumably, the Felten case will be appealed to the Third Circuit (which must take the appeal if filed), and 2600 will presumably file a cert petition with the US Supreme Court. No guarantee that the Supremes will find this one certworthy, though. Hard to tell without reading the decision...
New Jersey and New York
What all US voters who oppose these decisions should do is to lobby their (federal) representatives and senators to CHANGE or REPEAL the DMCA. The anti-circumvention provisions of the DMCA were created by Congress, and can be changed by a subsequent Congress.