I had the dubious distinction of testifying at both hearings...Since some of the above is in.pdf, here are links to HTML versions of my House and Senate prepared statements.
It would be really nice if someone who got one of these threatening letters could post it. Certainly there is nothing in the Salon article to suggest that the Pillsbury complaint has a shred of merit, or that the case isn't being brought years too late. But without a copy of the actual claims, it's always a little dangerous to speculate; reporters sometimes miss something.
That said, I am having a lot of trouble even imagining what a meritorious claim for Pillsbury would look like on these facts.
Actually I'm well aware that there will be an optional method, eventually, for masking MAC addresses in IPv6, although last I checked a few months ago it wasn't final yet and no one seemed in a great rush...and no one held up IPv6 to wait for this fix to be part of the rollout.
And I'm also aware that because it will not be the default, very few folk will use it; most folk will therefore have their true MAC address visible. Your comment is therefore not only snide but thoroughly misleading in terms of the practical effect on the privacy of not just average AOL users, but most people. I discuss all this and a great deal more about privacy in a recent article on privacy and the law (Note: article is in.pdf but a crude HTML of an earlier draft is available here)& lt;/P>
I've been a slashdot reader for quite a while. So no need to do this in the third person. (I wish they'd contacted me before slashdotting our server...I could also have told them the documents had moved.) The current online draft is being checked over to remove a very large number of spelling and formatting errors, and what I hope is a very small number of sourcing errors. A final version should be online some time next week for your quoting pleasure. Meanwhile, all 169 pages of the draft are now in one handy file. I intend to produce an HTML version in due course, but because the law review publishing this uses MS Word, which I don't use often, I have to find an easy way to convert the footnotes in a readable manner. Suggestions welcome.
Of the comments made so far, just two replies:
I don't claim that putting "don't quote" at the top of an academic paper creates a legal obligation on anyone -- just a moral one. Isn't that enough? For two weeks? If I wanted to create a legal obligation, I'd write you an NDA, ok?
The hardest question in my mind is not, "Is the US's use of ICANN illegal?" but rather, "If not ICANN, what?". I do offer some answers in Part IV of the paper (you have to struggle a long way to get there), but I would hope that readers on this list might come up with something better, where better is both freedom-enhancing and also at least marginally likely to be politically acceptable.
Africa
Region's Total votes 130
% of World Total 00.4%
Votes for ICANN Nominated Candidates 100 ( 88%)
Latin America
Region's Total votes: 1,402
% of World Total: 04.1%
Votes for ICANN Nominated Candidates 1,166 (83%)
North America*
Region's Total votes: 3,449
% of World Total: 10.1%
Votes for ICANN Nominated Candidates 1,114 (32%)
* - N.A. counts 1st choice votes only. Note also that if one counts the three candidates who expressed the most doubts about ICANN (Lessig, Simons, Auerbach), they got about 75% of first round choices.
Europe
Region's Total votes: 11,309
% of World Total 33.2%
Votes for ICANN Nominated Candidates 3,066 (27%)
Asia
Region's Total votes: 17,745
% of World Total 52.1%
Votes for ICANN Nominated Candidates 16,996 (95%)
Comments:
Participation rates did not correlate well with what I'd guess numbers of hosts or estimated numbers of users are, except arguably at the low end.
Five regions fell into three groups:
Africa and Latin America: Very low participation, high rates for ICANN-nominated candidates
N.America & Europe. Medium to low participation, substantial opposition to ICANN and to ICANN nominated candidates (Lessig is a special case).
Asia/Pacific. More than half of the global votes cast. Elected a person resident in the Washington, D.C. area. Most votes went to ICANN-nominated candidates.
The US government remains in charge of the DNS. ICANN is just its agent, by contract. The contracts expire in a few months, but are renewable. The US government can under the current contracts take back all power and terminate ICANN's authority. The government wishes to downpeadal this, both to avoid being held responsible for ICANN and to lessen attention to the issue of renewing or even expanding ICANN's role this fall.
It is not correct that "Nine of its board members are chosen by organizations that run the technical side of the Internet." Even if one accepted this fits the PSO, and the ASO, it cannot by any analysis fit the DNSO - which is the business constituency, and has NO technical element AT ALL.
Seems to me that there's a market for various sorts of warranties as a value-added service to open source. But I doubt that anyone is going to give a blanket warranty that a firewall or anything else is hacker-proof, whether that something is open or closed source. In both cases the downside liability is just too great.
The folks who built your home didn't give you a warranty that it was burglar-proof. Even my alarm company only promises intrusion detection and rapid reaction...
A. Michael Froomkin, U. Miami School of Law,POB 248087 Coral Gables, FL 33124,USA
I invite you to visit ICANNWatch for details on what's wrong with ICANN.
P.S. To say that "the truth lies somewhere in the middle" is to (1) allow "truth" to turn on how extreme participants happen to be; (2) ignore the possibility that there is real truth (is the truth half way between the flat-earth crowd and the spherical-earth crowd? What sort of shape is that?)
A. Michael Froomkin, U. Miami School of Law,POB 248087 Coral Gables, FL 33124,USA
While I wish it was otherwise, Boyd is (all but?) dead. It was decided over 100 years ago, and has been whittled down to (next to) nothing.
In Boyd v. United States, 116 U.S. 616 (1886) the Supreme Court stated that private papers are an owner's "dearest property." Id. at 627-28. Relying on both the Fourth and Fifth Amendments, the Court found that allowing the state to compel production of that property would be "abhorrent to the instincts" of an American and "contrary to the principles of a free government." Id. at 632. The rule in Boyd has been criticized. For example, Judge Friendly called it "ringing but vacuous" because it "tells us almost everything, except why." Henry J. Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. Cin. L. Rev. 671, 682 (1968). Nevertheless, as recently as Bellis v. United States, 417 U.S. 85 (1974), the Supreme Court reemphasized that the Fifth Amendment protects "'a private inner sanctum of individual feeling and thought', an inner sanctum which necessarily includes an individual's papers and effects to the extent that the privilege bars their compulsory production and authentication." Id. at 91 (quoting Couch v. United States, 409 U.S. 322, 327 (1973)).
Nevertheless, it seems very likely that a majority of the Supreme Court would hold that the rule found "abhorrent" in 1886 is now the law because the rule in Boyd has been whittled away to irrelevance: First, only natural persons can find shelter under the Fifth Amendment, and only for papers they both own and control. Thus, corporations can never claim the privilege, and neither can natural persons with regard to corporate records, even if they created and now control those records. Braswell v. United States, 487 U.S. 99, 109-10 (1988). Second, once papers are handed to another, the legitimate expectation of privacy needed to maintain a claim under either the Fourth or Fifth Amendments disappears. (The attorney-client privilege is an exception to this general rule.) Third, records required to be kept for legal or regulatory purposes are outside the privilege. Shapiro v. United States, 335 U.S. 1 (1948). Fourth, persons can be forced to perform nontestimonial acts such as giving handwriting samples. Gilbert v. California, 388 U.S. 263, 266-67 (1967). This rule has also been applied to voice samples, United States v. Wade, 388 U.S. 218, 222-23 (1967). and blood samples. Schmerber v. California, 384 U.S. 757, 767 (1966). Fifth, aliens outside the sovereign territory of the United States do not ordinarily enjoy Fifth Amendment rights. Finally, in Baltimore City Department of Social Services v. Bouknight, the Supreme Court, analogizing the mother's care of the child to a required record, held that producing a child was not testimonial, and therefore the Fifth Amendment did not apply. See also Andresen v. Maryland, 427 U.S. 463, 472-73 (1976) (holding that a legal search of the petitioner's office resulting in the seizure of voluntarily recorded business records authenticated by a prosecution witness was not a violation of the Fifth Amendment); Bellis v. United States, 417 U.S. 85, 101 (1974) (holding that a dissolved law partnership had its own institutional identity, and its records were held in a representative capacity; therefore a grand jury subpoena for those records could not be ignored on Fifth Amendment grounds); United States v. White, 322 U.S. 694, 698-99 (1944) (holding that an officer of an unincorporated labor union could not refuse, based on Fifth Amendment protections, to produce the union's records); Hale v. Henkel, 201 U.S. 43, 56-58 (1906) (holding that a witness who, because of statutory immunity, cannot invoke the Fifth Amendment as to oral testimony cannot invoke it against the production of books and papers).
In light of these decisions it is fair to ask whether the Fifth Amendment applies to anything other than oral testimony. The odds are that the Supreme Court would hold that it does not, that Boyd has therefore lost all its vitality, and that Justice O'Connor was correct when she stated that the exceptions have now swallowed the rule: "[T]he Fifth Amendment provides absolutely no protection for the contents of private papers of any kind." United States v. Doe, 465 U.S. 605, 618 (O'Connor, J., concurring).
A. Michael Froomkin, U. Miami School of Law,POB 248087 Coral Gables, FL 33124,USA
Today, as it happens, marks the opening of the Disputes.org/eResolution.ca Consortium. We'll be providing the first wholly online domain name dispute resolution system, and we have a very distinguished panel of arbitrators. It's all explained in our press release or you can go straight to either the eResolution or Disputes.org homepages.
The Consortium is accredited by ICANN, which means you will be able to use our services for all gTLD-related disputes in the legacy root, including domains registered by NSI. I expect we will be listed on the NSI "Domain Magistrate" page soon (as I understand it, that page is really just a front end for the ICANN-mandated dispute process).
From this photo of what a scan reveals of body contours it seems to me that if a man were wearing boxers instead of what in this pix look like briefs (and even so real enough to bother some people) or if a women were not wearing a bra, the photo would be fairly revealing. I think that people with body modesty would have a legitimate complaint here. A. Michael Froomkin, U. Miami School of Law,POB 248087 Coral Gables, FL 33124,USA
I'm sorry, but on what exactly is e-toys case based? I don't see it.
There are four families of possible causes of action. From what I've read in the papers (I have NOT seen any of the actual court documents) none of them works:
The Lanham Act. But etoys have to overcome insurmountable difficulties here. First, the etoy people were there first.
Trademarks are not retroactive. If etoy was there first, they win under the Lanham Act.
Second, the two groups are in different lines of business. So the likelihood of confusion is tiny.
Third, the etoy people are arguably non-commercial; the Lanham Act only applies to commercial uses of a name.
State and federal anti-dillution law.
I don't know anything about Cal. state anti-dillution law (if any), so I'll pass on that.
Federal anti-dillution law only appplies to commercial users. Same issue as above.
To prevail under federal dilution law, etoy would have to prove that their mark was "famous". While not impossible, it is a stretch.
15 USC 1125 only protects a famous mark if the dilutive use "begins after the mark has become famous." That is clearly not the case here.
The cybersquatting bill only applies if the alleged squatter was acting in bad faith. That is clearly not the case here.
This is not a case where unfair competition law applies.
I think the judge was wrong to grant the injunction. Some combination of talk about securities fraud, other bad things, the xmas rush, the home town advantage, judicial error, whatever, produced the injunction. I don't see how it could have survived an appeal. Or am I missing some fact somewhere? Anyone seen the actual court papers?
To my eye it's no wonder etoys is trying to drop the case.
A. Michael Froomkin, U. Miami School of Law,POB 248087 Coral Gables, FL 33124,USA
Again, keep in mind I'm not a California lawyer, so this is quite suspect, but...
I read it to mean that mere reverse engineering of a legally acquired copy, e.g. on the open market, is not actionable. The "extra" bit that might make the suit potentially valid is if there was a direct contractual obligation not to disclose on the part of the recipient.
Which makes you wonder what happens when states start passing laws like former-UCC 2B-now-UCITA which (last time I checked) lets them impose no-reverse-engineering clauses on consumers...
A. Michael Froomkin, U. Miami School of Law,POB 248087 Coral Gables, FL 33124,USA
There is no obligation on plaintiffs to be "non-discriminatory" in who they sue. It suffices that they sue wrongdoers. If there are more who are left out who owed duties to the sued defendants, they can implead them (defendants turn around and force others in to the case). But if you are part of a gang that beats up Bob, and Bob sues just you, it's no defense to your liability to say that you were part of a gang.
Of course, suing people who are not guilty is a big no-no: "If a claim of misappropriation is made in bad faith, a motion to terminate an injunction is made or resisted in bad faith, or willful and malicious misappropriation exists, the court may award reasonable attorneys' fees to the prevailing party." Cal. Civ.Code 3426.4.
I'm not a California lawyer, and california law has all sorts of strange wrinkles. Plus, the complaint raises a claim for "misappropriation of trade secrets" which sounds like it may have some common law component as wall as a statutory aspect(??). But here, in any case, is an arguably relevant statute, Cal Civil Code sec. 3426.1:
3426.1. Definitions
As used in this title, unless the context requires otherwise: (a) "Improper means" includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means. Reverse engineering or independent derivation alone shall not be considered improper means. (b) "Misappropriation" means: (1) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or (2) Disclosure or use of a trade secret of another without express or implied consent by a person who: (A) Used improper means to acquire knowledge of the trade secret; or (B) At the time of disclosure or use, knew or had reason to know that his or her knowledge of the trade secret was: (i) Derived from or through a person who had utilized improper means to acquire it; (ii) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (iii) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or (C) Before a material change of his or her position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake. (c) "Person" means a natural person, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity. (d) "Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
If the above is the law that applies, and if the person who reverse engineered and disclosed had a contractual obligation NOT to, and if the named defendants knew or should have known these facts and if the court has jurisdiction over them, then and only then this statute suggests the judge may grant the injunction.
Please don't get me wrong, I'm not advocating that outcome, just reporting. I should also note that sec. 3426.2(a) says that injunctions must be lifted if someone demonstrates that the "trade secret has ceased to exist" and that sec. 3426.2(b) says that "If the court determines that it would be unreasonable to prohibit future use, an injunction may condition future use upon payment of a reasonable royalty for no longer than the period of time the use could have been prohibited."
All that aside, an injuction against "linkers" as opposed to posters would seem to me to be outrageous. But there is a little bit of (ugly) precedent floating around....
Final point: while showing up in numbers can't hurt, it would be a lot better if one of the free software groups could get a lawyer down there and attempt to appear either as an intervenor or as a friend of the court. Much more likely to have some effect. Spectators are not allowed to talk in court.
A. Michael Froomkin, U. Miami School of Law,POB 248087 Coral Gables, FL 33124,USA
Speaking as a law professor, and sometime teacher of constitutional law, I think either
your friend goes to one h*ll of a lousy school, or
(more likely) she was pulling your leg, or
I'd start worrying about her grades.
According to her, they teach the following at her school:
Laws must be written vaguely, otherwise they will have unintended consequences that cannot be addressed(!?)
It's certainly true that there is a relationship between specificity and the inability to address unexpected consequences. But it's trivially obvious that there are many times when specificity is to be preferred. In the US, also, if a law is too vague it may be "void for vagueness" or even (in an extreme case) held to violate the constitutional non-delegation doctrine under which Congress may not make standardless delegations of power to the executive.
The 'average' American must not be allowed to participate in the political system (ie, run for Congress) because they are incapable of understanding the issues involved with creating laws that run the country
This is simply nonsensense. I honestly don't think I know a single person in law teaching who believes this. I find it hard to imagine anyone saying this to a class without becoming the subject of (deserved) derision.
The rights enumerated in the Constitution were never meant to apply to the general populace, but to an 'educated' superset (she got upset when I began calling it an 'elite class') that would then make all decisions on behalf of the people
There is maybe half a grain of truth here, but very distorted. It's true that at the time of the Framing, only white males could vote, and that a small number of states still had a (relatively low) property requirement for the franchise. The property rules lasted only a few years; giving women and non-whites the vote took much longer. But it's absurd to say that only elite men were expected to vote or have rights. Leaving aside the rather significant issues of blacks and Native Americans, it is very clear (in principle, and sometimes in practice) that the rights in the constitution, including the bill of rights, were for all.
It's less clear that political power was originally intended to be democratized. Only the House was a really democratic body; Senators were selected by state legislatures, and the President by an Electoral College - both measures designed to avoid having too much control by the unwashed. The dominant political theory of the day was more republican than democratic - rule should not be by direct democracy for fear of rule by the mob, by "passion". Hence the compromise of SOME highly democratic power in the House, including the ciritical power to initiate taxation (because tax without consent of the governed was wrong), but not what they thought of as too much.
Of course, all that was a long time ago, and the extent to which we should consider ourselves bound by the less than perfectly democratic intentions of a bunch of what some call "dead rich white guys" is controversial, especially in light of the large number of relevant constitutional amendments that make our system far more (formally) democratic today.
A. Michael Froomkin, U. Miami School of Law,POB 248087 Coral Gables, FL 33124,USA
Actually, there's very little new in this paper, although the presentation is very snappy, and the PR blitz is impressive, verging on excessive (I've seen this announcement about 15 times on various lists today).
NYT now has a newer article with more info, including Posner "has no authority to force the parties to reach a settlement, or to impose one" and the 7th Circuit mediation rules (for non-judge mediators, I'd bet), rules which won't apply formally, but might be influential, state that "the mediator does not tell the district court judge trying the case what occurred during the talks. That way, if the talks fail because of one party or another, it will not prejudice the judge as he prepares his verdict."
A. Michael Froomkin, U. Miami School of Law,POB 248087 Coral Gables, FL 33124,USA
The New York times reports that both sides agreed to the Posner appointment in chambers. That means they can't object later. The Washington Post also reports the interesting fact that Judge Jackson has appointed Harvard Prof. Larry Lessig, briefly a special master in the case, to "advise" him.
Alas, neither report tell us what kind of mediation it will be. Presumably, though, not the sort where parties have to accept the mediator's decision. Apparently the order will be published on Monday.
Having sitting judges accept appointments as mediators or arbitrators is common in the UK. It is very rare in the US, and probably would be unacceptable if the appointing authority were anyone other than another judge. It's certainly unorthodox.
As for Posner, while something of a sceptic about regulation, his jurisprudential writing is strong on the obligation of judges to follow Congressional intent. Indeed, he even suggested (playfully?) in one writing that maybe judges should interpret statutes like the securities and anti-trust laws more expansively, because the Congresses that passed them [controlled by Democrats!] desired expansive constructions, but that laws passed by more recent Congresses [controlled by Republicans!] might be read narrowly due to the different tenor of modern Congresses...
In person, Posner is very different from what you would expect from his energetic writing style. Quiet, almost sweet, very interesting, could be someone's favorite uncle or maybe grandfather. Lots of fun to have lunch with.
A. Michael Froomkin, U. Miami School of Law,POB 248087 Coral Gables, FL 33124,USA
Slashdot Mirror
The full house hearing stuff is at http://www.house.gov/commerce/hearings/telecom0208 2001.htm.H earings. [NOTE: visiting the Senate committee's web site will produce a noise like a modem retraining. This is a feature, for no explainable reason, and just a sound effect. It's not your modem.]
And the full senate hearing stuff is at http://www.senate.gov/~commerce/issues/telco.htm#
I had the dubious distinction of testifying at both hearings...Since some of the above is in .pdf, here are links to HTML versions of my House and Senate prepared statements.
It would be really nice if someone who got one of these threatening letters could post it. Certainly there is nothing in the Salon article to suggest that the Pillsbury complaint has a shred of merit, or that the case isn't being brought years too late. But without a copy of the actual claims, it's always a little dangerous to speculate; reporters sometimes miss something.
That said, I am having a lot of trouble even imagining what a meritorious claim for Pillsbury would look like on these facts.
Public relations fiasco, anyone?
Read the decision in Konop v. Hawaiian Airlines at findlaw.com.
Actually I'm well aware that there will be an optional method, eventually, for masking MAC addresses in IPv6, although last I checked a few months ago it wasn't final yet and no one seemed in a great rush...and no one held up IPv6 to wait for this fix to be part of the rollout.
And I'm also aware that because it will not be the default, very few folk will use it; most folk will therefore have their true MAC address visible. Your comment is therefore not only snide but thoroughly misleading in terms of the practical effect on the privacy of not just average AOL users, but most people. I discuss all this and a great deal more about privacy in a recent article on privacy and the law (Note: article is in .pdf but a crude HTML of an earlier draft is available here)& lt;/P>
This is better at tracking you than a database based on reverse IP lookups because what exactly? (Keeping in mind that with IPv6 there's going to be *much* more data about you in each of those packets....)
I bet you didn't read the article before flaming.
I argue:
ICANN is bad because of the evil precedent it sets for other US government functions to be run by similar entites.
The answer to the DNS problem is ... to decentralize the policy-making and have lots of entities working in parallel to create new TLDs.
I've been a slashdot reader for quite a while. So no need to do this in the third person. (I wish they'd contacted me before slashdotting our server...I could also have told them the documents had moved.) The current online draft is being checked over to remove a very large number of spelling and formatting errors, and what I hope is a very small number of sourcing errors. A final version should be online some time next week for your quoting pleasure. Meanwhile, all 169 pages of the draft are now in one handy file. I intend to produce an HTML version in due course, but because the law review publishing this uses MS Word, which I don't use often, I have to find an easy way to convert the footnotes in a readable manner. Suggestions welcome.
Of the comments made so far, just two replies:
Region's Total votes 130
% of World Total 00.4%
Votes for ICANN Nominated Candidates 100 ( 88%)
Latin America
Region's Total votes: 1,402
% of World Total: 04.1%
Votes for ICANN Nominated Candidates 1,166 (83%)
North America*
Region's Total votes: 3,449
% of World Total: 10.1%
Votes for ICANN Nominated Candidates 1,114 (32%)
* - N.A. counts 1st choice votes only. Note also that if one counts the three candidates who expressed the most doubts about ICANN (Lessig, Simons, Auerbach), they got about 75% of first round choices.
Europe
Region's Total votes: 11,309
% of World Total 33.2%
Votes for ICANN Nominated Candidates 3,066 (27%)
Asia
Region's Total votes: 17,745
% of World Total 52.1%
Votes for ICANN Nominated Candidates 16,996 (95%)
Comments:
Participation rates did not correlate well with what I'd guess numbers of hosts or estimated numbers of users are, except arguably at the low end.
Five regions fell into three groups:
Lessig is formerly Harvard, now Stanford.
Here's an interesting platform by an interesting candidate.
His endorsement page is here.
Two words: voice recognition.
The article gets two facts wrong:
- The US government remains in charge of the DNS. ICANN is just its agent, by contract. The contracts expire in a few months, but are renewable. The US government can under the current contracts take back all power and terminate ICANN's authority. The government wishes to downpeadal this, both to avoid being held responsible for ICANN and to lessen attention to the issue of renewing or even expanding ICANN's role this fall.
- It is not correct that "Nine of its board members are chosen by organizations that run the technical side of the Internet." Even if one accepted this fits the PSO, and the ASO, it cannot by any analysis fit the DNSO - which is the business constituency, and has NO technical element AT ALL.
Please visit ICANNWatch.orgA. Michael Froomkin,
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA
Seems to me that there's a market for various sorts of warranties as a value-added service to open source. But I doubt that anyone is going to give a blanket warranty that a firewall or anything else is hacker-proof, whether that something is open or closed source. In both cases the downside liability is just too great.
The folks who built your home didn't give you a warranty that it was burglar-proof. Even my alarm company only promises intrusion detection and rapid reaction...
A. Michael Froomkin,
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA
I invite you to visit ICANNWatch for details on what's wrong with ICANN.
P.S. To say that "the truth lies somewhere in the middle" is to (1) allow "truth" to turn on how extreme participants happen to be; (2) ignore the possibility that there is real truth (is the truth half way between the flat-earth crowd and the spherical-earth crowd? What sort of shape is that?)
A. Michael Froomkin,
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA
I've said for years that my kids should be paying me license fees for their use of my genes.
Only problem is that the life of a patent doesn't extend to their prime income-earning years....
Next problem: what if I want to revoke that license?
A. Michael Froomkin,
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA
While I wish it was otherwise, Boyd is (all but?) dead. It was decided over 100 years ago, and has been whittled down to (next to) nothing.
In Boyd v. United States, 116 U.S. 616 (1886) the Supreme Court stated that private papers are an owner's "dearest property." Id. at 627-28. Relying on both the Fourth and Fifth Amendments, the Court found that allowing the state to compel production of that property would be "abhorrent to the instincts" of an American and "contrary to the principles of a free government." Id. at 632. The rule in Boyd has been criticized. For example, Judge Friendly called it "ringing but vacuous" because it "tells us almost everything, except why." Henry J. Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. Cin. L. Rev. 671, 682 (1968). Nevertheless, as recently as Bellis v. United States, 417 U.S. 85 (1974), the Supreme Court reemphasized that the Fifth Amendment protects "'a private inner sanctum of individual feeling and thought', an inner sanctum which necessarily includes an individual's papers and effects to the extent that the privilege bars their compulsory production and authentication." Id. at 91 (quoting Couch v. United States, 409 U.S. 322, 327 (1973)).
Nevertheless, it seems very likely that a majority of the Supreme Court would hold that the rule found "abhorrent" in 1886 is now the law because the rule in Boyd has been whittled away to irrelevance: First, only natural persons can find shelter under the Fifth Amendment, and only for papers they both own and control. Thus, corporations can never claim the privilege, and neither can natural persons with regard to corporate records, even if they created and now control those records. Braswell v. United States, 487 U.S. 99, 109-10 (1988). Second, once papers are handed to another, the legitimate expectation of privacy needed to maintain a claim under either the Fourth or Fifth Amendments disappears. (The attorney-client privilege is an exception to this general rule.) Third, records required to be kept for legal or regulatory purposes are outside the privilege. Shapiro v. United States, 335 U.S. 1 (1948). Fourth, persons can be forced to perform nontestimonial acts such as giving handwriting samples. Gilbert v. California, 388 U.S. 263, 266-67 (1967). This rule has also been applied to voice samples, United States v. Wade, 388 U.S. 218, 222-23 (1967). and blood samples. Schmerber v. California, 384 U.S. 757, 767 (1966). Fifth, aliens outside the sovereign territory of the United States do not ordinarily enjoy Fifth Amendment rights. Finally, in Baltimore City Department of Social Services v. Bouknight, the Supreme Court, analogizing the mother's care of the child to a required record, held that producing a child was not testimonial, and therefore the Fifth Amendment did not apply. See also Andresen v. Maryland, 427 U.S. 463, 472-73 (1976) (holding that a legal search of the petitioner's office resulting in the seizure of voluntarily recorded business records authenticated by a prosecution witness was not a violation of the Fifth Amendment); Bellis v. United States, 417 U.S. 85, 101 (1974) (holding that a dissolved law partnership had its own institutional identity, and its records were held in a representative capacity; therefore a grand jury subpoena for those records could not be ignored on Fifth Amendment grounds); United States v. White, 322 U.S. 694, 698-99 (1944) (holding that an officer of an unincorporated labor union could not refuse, based on Fifth Amendment protections, to produce the union's records); Hale v. Henkel, 201 U.S. 43, 56-58 (1906) (holding that a witness who, because of statutory immunity, cannot invoke the Fifth Amendment as to oral testimony cannot invoke it against the production of books and papers).
In light of these decisions it is fair to ask whether the Fifth Amendment applies to anything other than oral testimony. The odds are that the Supreme Court would hold that it does not, that Boyd has therefore lost all its vitality, and that Justice O'Connor was correct when she stated that the exceptions have now swallowed the rule: "[T]he Fifth Amendment provides absolutely no protection for the contents of private papers of any kind." United States v. Doe, 465 U.S. 605, 618 (O'Connor, J., concurring).
A. Michael Froomkin,
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA
Today, as it happens, marks the opening of the Disputes.org/eResolution.ca Consortium. We'll be providing the first wholly online domain name dispute resolution system, and we have a very distinguished panel of arbitrators. It's all explained in our press release or you can go straight to either the eResolution or Disputes.org homepages.
The Consortium is accredited by ICANN, which means you will be able to use our services for all gTLD-related disputes in the legacy root, including domains registered by NSI. I expect we will be listed on the NSI "Domain Magistrate" page soon (as I understand it, that page is really just a front end for the ICANN-mandated dispute process).
I'm a founding member of disputes.org, so I'm biased, but I think our international panel of arbitrators is pretty impressive and the online complaint forms are handsome and functional. What do you think?
P.S. For this purpose, ignore my automatic .sig below. My participation in disputes.org is not connected with my day job....
A. Michael Froomkin,
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA
From this photo of what a scan reveals of body contours it seems to me that if a man were wearing boxers instead of what in this pix look like briefs (and even so real enough to bother some people) or if a women were not wearing a bra, the photo would be fairly revealing. I think that people with body modesty would have a legitimate complaint here.
A. Michael Froomkin,
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA
I'm sorry, but on what exactly is e-toys case based? I don't see it.
There are four families of possible causes of action. From what I've read in the papers (I have NOT seen any of the actual court documents) none of them works:
I think the judge was wrong to grant the injunction. Some combination of talk about securities fraud, other bad things, the xmas rush, the home town advantage, judicial error, whatever, produced the injunction. I don't see how it could have survived an appeal. Or am I missing some fact somewhere? Anyone seen the actual court papers?
To my eye it's no wonder etoys is trying to drop the case.
A. Michael Froomkin,
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA
Again, keep in mind I'm not a California lawyer, so this is quite suspect, but...
I read it to mean that mere reverse engineering of a legally acquired copy, e.g. on the open market, is not actionable. The "extra" bit that might make the suit potentially valid is if there was a direct contractual obligation not to disclose on the part of the recipient.
Which makes you wonder what happens when states start passing laws like former-UCC 2B-now-UCITA which (last time I checked) lets them impose no-reverse-engineering clauses on consumers...
A. Michael Froomkin,
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA
There is no obligation on plaintiffs to be "non-discriminatory" in who they sue. It suffices that they sue wrongdoers. If there are more who are left out who owed duties to the sued defendants, they can implead them (defendants turn around and force others in to the case). But if you are part of a gang that beats up Bob, and Bob sues just you, it's no defense to your liability to say that you were part of a gang.
Of course, suing people who are not guilty is a big no-no: "If a claim of misappropriation is made in bad faith, a motion to terminate an injunction is made or resisted in bad faith, or willful and malicious misappropriation exists, the court may award reasonable attorneys' fees to the prevailing party." Cal. Civ.Code 3426.4.
I'm not a California lawyer, and california law has all sorts of strange wrinkles. Plus, the complaint raises a claim for "misappropriation of trade secrets" which sounds like it may have some common law component as wall as a statutory aspect(??). But here, in any case, is an arguably relevant statute, Cal Civil Code sec. 3426.1:
If the above is the law that applies, and if the person who reverse engineered and disclosed had a contractual obligation NOT to, and if the named defendants knew or should have known these facts and if the court has jurisdiction over them, then and only then this statute suggests the judge may grant the injunction.Please don't get me wrong, I'm not advocating that outcome, just reporting. I should also note that sec. 3426.2(a) says that injunctions must be lifted if someone demonstrates that the "trade secret has ceased to exist" and that sec. 3426.2(b) says that "If the court determines that it would be unreasonable to prohibit future use, an injunction may condition future use upon payment of a reasonable royalty for no longer than the period of time the use could have been prohibited."
All that aside, an injuction against "linkers" as opposed to posters would seem to me to be outrageous. But there is a little bit of (ugly) precedent floating around....
Final point: while showing up in numbers can't hurt, it would be a lot better if one of the free software groups could get a lawyer down there and attempt to appear either as an intervenor or as a friend of the court. Much more likely to have some effect. Spectators are not allowed to talk in court.
A. Michael Froomkin,
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA
Speaking as a law professor, and sometime teacher of constitutional law, I think either
It's certainly true that there is a relationship between specificity and the inability to address unexpected consequences. But it's trivially obvious that there are many times when specificity is to be preferred. In the US, also, if a law is too vague it may be "void for vagueness" or even (in an extreme case) held to violate the constitutional non-delegation doctrine under which Congress may not make standardless delegations of power to the executive.
This is simply nonsensense. I honestly don't think I know a single person in law teaching who believes this. I find it hard to imagine anyone saying this to a class without becoming the subject of (deserved) derision.
There is maybe half a grain of truth here, but very distorted. It's true that at the time of the Framing, only white males could vote, and that a small number of states still had a (relatively low) property requirement for the franchise. The property rules lasted only a few years; giving women and non-whites the vote took much longer. But it's absurd to say that only elite men were expected to vote or have rights. Leaving aside the rather significant issues of blacks and Native Americans, it is very clear (in principle, and sometimes in practice) that the rights in the constitution, including the bill of rights, were for all.
It's less clear that political power was originally intended to be democratized. Only the House was a really democratic body; Senators were selected by state legislatures, and the President by an Electoral College - both measures designed to avoid having too much control by the unwashed. The dominant political theory of the day was more republican than democratic - rule should not be by direct democracy for fear of rule by the mob, by "passion". Hence the compromise of SOME highly democratic power in the House, including the ciritical power to initiate taxation (because tax without consent of the governed was wrong), but not what they thought of as too much.
Of course, all that was a long time ago, and the extent to which we should consider ourselves bound by the less than perfectly democratic intentions of a bunch of what some call "dead rich white guys" is controversial, especially in light of the large number of relevant constitutional amendments that make our system far more (formally) democratic today.
A. Michael Froomkin,
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA
Actually, there's very little new in this paper, although the presentation is very snappy, and the PR blitz is impressive, verging on excessive (I've seen this announcement about 15 times on various lists today).
For a much more detailed, and perhaps more tedious, look at law and anonymity issues, see my paper Flood Control on the Information Ocean: Living With Anonymity, Digital Cash, and Distributed Databases (1996), which discusses the cryptographic foundations of anonymity, and the legal issues it raises. You may also be interested in my 1996 paper on the Clipper Chip, which discusses whether a legal restrictions on crypto use would be consitutional.
Hmmm. Maybe next time I write a paper I should issue a press release? (No, I know, I should write shorter papers....)
A. Michael Froomkin,
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA
NYT now has a newer article with more info, including Posner "has no authority to force the parties to reach a settlement, or to impose one" and the 7th Circuit mediation rules (for non-judge mediators, I'd bet), rules which won't apply formally, but might be influential, state that "the mediator does not tell the district court judge trying the case what occurred during the talks. That way, if the talks fail because of one party or another, it will not prejudice the judge as he prepares his verdict."
A. Michael Froomkin,
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA
The New York times reports that both sides agreed to the Posner appointment in chambers. That means they can't object later. The Washington Post also reports the interesting fact that Judge Jackson has appointed Harvard Prof. Larry Lessig, briefly a special master in the case, to "advise" him.
Alas, neither report tell us what kind of mediation it will be. Presumably, though, not the sort where parties have to accept the mediator's decision. Apparently the order will be published on Monday.
Having sitting judges accept appointments as mediators or arbitrators is common in the UK. It is very rare in the US, and probably would be unacceptable if the appointing authority were anyone other than another judge. It's certainly unorthodox.
As for Posner, while something of a sceptic about regulation, his jurisprudential writing is strong on the obligation of judges to follow Congressional intent. Indeed, he even suggested (playfully?) in one writing that maybe judges should interpret statutes like the securities and anti-trust laws more expansively, because the Congresses that passed them [controlled by Democrats!] desired expansive constructions, but that laws passed by more recent Congresses [controlled by Republicans!] might be read narrowly due to the different tenor of modern Congresses...
In person, Posner is very different from what you would expect from his energetic writing style. Quiet, almost sweet, very interesting, could be someone's favorite uncle or maybe grandfather. Lots of fun to have lunch with.
A. Michael Froomkin,
U. Miami School of Law,POB 248087
Coral Gables, FL 33124,USA