News from the Base

Josh Skyped last night from his base in Honduras.  After three weeks he is settling in to the job and to life on the base.  He was having a quiet night to get up early for what he called an “MW&R” trip.  “MW&R?” we asked. “Morale, Welfare, and Relaxation” Josh replied.  Everything’s an acronym or abbreviation in the Army.   They planned to visit a waterfall–the temperature is in the 80s or 90s every day–and end the day at a brewery.  Josh said there are MW&R trips every weekend.  It’s the new Army recruiting motto:  Be as Relaxed as You Can Be.

Explanation Given

Some interesting comments followed Explanation Wanted, a recent post prompted by my difficulties responding to a recommendation request from a former student.  (These comments appeared in my Google Buzz feed, not on this site.)  Two comments thought it a desperate response to the competitiveness of law school admission or a misinterpretation of law school application signals to favor a recommendation from a law teacher, even if the student received higher grades in other courses.  Personal or family issues may have caused the student’s performance that semester to suffer. (If that happens to you, clue in your teachers.)  I agree with the comment that “students can fall through the cracks.”  Some years back, concerned about some students who passed through my classroom like ghosts, I strongly encouraged every student to see me in office hours during the first six weeks of the semester.  About 80% of my students those semesters responded.  These meetings were helpful for me, but were inefficient.  The same comment noted that office hours “can be very problematic for students with high levels of commitment elsewhere, or for students who are particularly unadjusted to networking and communication with teachers (aka shy).”   Thinking also of my post about diminishing attendance at office hours, if students spend less time in face to face contact with faculty–whether because they are busy, or they think an email message is just as good, or they can’t see any benefit that will come from talking with a professor, the decline in the number of students I know well enough to recommend could provide me with abundant free time.

Class Act

It was take-your-sister-to-work day.   Curious about what I do–or, as a friend said, because she has too much vacation time–my sister attended today’s Internet Law and Intro to Law.   When a friend or family member sits in on a class I have to block them out.  I tamp down my heightened self-consciousness and drain special meaning from their presence so they become another face. This was made easier by lively discussions in both classes–well done, students.  Many weren’t aware of her presence.  Others likely assumed she was a parent or administrator. From the back row she saw laptop users shopping, checking email, reading the news, and otherwise distracting themselves from the discussion.  (It helps the grading curve that, were I to reveal exam answers during class discussion, blissful ignorance of their surroundings would cause some students to get them wrong.)  She enjoyed the experience.  And she only nodded off once. In a stuffy room. After eating lunch. Briefly.


Should the law require the seller of a house to disclose that a murder or suicide occurred there?  The Consumerist blog posed this question a few weeks ago, noting the Massachusetts law (G.L. ch. 93 §114) does not require such disclosure:

The fact or suspicion that real property may be or is psychologically impacted shall not be deemed to be a material fact required to be disclosed in a real estate transaction. “Psychologically impacted” shall mean an impact being the result of facts or suspicions including, but not limited to, the following:

(a) that an occupant of real property is now or has been suspected to be infected with the Human Immunodeficiency Virus or with Acquired Immune Deficiency Syndrome or any other disease which reasonable medical evidence suggests to be highly unlikely to be transmitted through the occupying of a dwelling;

(b) that the real property was the site of a felony, suicide or homicide; and

(c) that the real property has been the site of an alleged parapsychological or supernatural phenomenon.

No cause of action shall arise or be maintained against a seller or lessor of real property or a real estate broker or salesman, by statute or at common law, for failure to disclose to a buyer or tenant that the real property is or was psychologically impacted.

Which does not mean the seller can lie about it:

Notwithstanding the foregoing, the provisions of this section shall not authorize a seller, lessor or real estate broker or salesman to make a misrepresentation of fact or false statement.

Should this be the law?  Would a house’s history of murder or suicide affect how much you would be willing to pay for it?

Is Ginga Vitis Related to Vitas Gerulaitis?

I spent a few hours today in the periodontist’s chair.  I was injected, inspected, and disinfected, draped and scraped, inverted and squirted, sliced and iced, stitched and hitched to my periodontist for follow-up appointments.  I’ve had an ice bag duct-taped to my jaw for the past six hours.  If it looks like I’m hiding a chipmunk in my cheek tomorrow, be nice.

$.70 a Song

Joel Tenenbaum, BU’s own music pirate found liable last summer for copyright infringement in a case that attracted considerable media attention, is in the news again.  A federal court jury ordered Tenenbaum to pay $675,000 in damages to copyright holders for downloading 30 songs.  That’s $22,500 a song.   Tenenbaum’s pro bono lawyer Charlie Nesson argued yesterday to trial judge Nancy Gertner that the appropriate measure of damages would be the revenue lost because Tenenbaum didn’t purchase the songs from iTunes.  At the iTunes price of $.99 a song, assuming iTunes would pay the rights holder the standard 70% of the sale price, Nesson said the total damages should be no more than $21. The Boston Globe article about the hearing does not mention whether Gertner, plaintiffs’ counsel, the court clerk, the bailiffs, and the courtroom’s audience burst into laughter mention of Nesson’s damage figure.  There had to be considerable eye-rolling.  Many commentators, including me, have been critical of Nesson’s handling of this case (see prior posts).  Today he earns kudos for passing the straight-face test. The record companies’ lawyers response was that Tenebaum “has no one to blame but himself.”

Nesson’s strategy may prove to be a wily gamble.  Gertner’s 2009 order explaining her decision not to allow Tenenbaum’s fair use defense signaled in very clear terms her discomfort with the state of the law regarding file-sharing.  Gertner is very smart and not afraid to take a fresh look at this case.  Nesson’s $.70-a-song argument is calculatedly ridiculous.  Nesson did not cover himself with legal glory before and during Tenenbaum’s trial, but he is very smart.  By staking out such an extreme position he leaves Gertner plenty of room to maneuver.

Treaty Draft Makes ISPs Liable for Illegal Content

PC World reports that a draft treaty leaked from the Anti-Counterfeiting Trade Agreement talks would make ISPs liable for civil damages for user-generated uploads and downloads of copyrighted content.  According to PC World, the draft treaty would require ISPs to take affirmative steps, such as terminating violators’ accounts, to avoid being liable for their users’ copyright infringement.  France last year enacted a “three-strikes” law requiring ISPs to terminate an account after a user’s second warning for copyright violations.  Participating in the ACTA talks are the U.S., the E.U., Australia, Canada, Jordan, Mexico, Morocco, New Zealand, Singapore, South Korea, and the United Arab Emirates.  If adopted by the U.S the draft proposal would change current law. Under the Digital Millennium Copyright Act U.S. based ISPs can avoid liability for users’ copyright infringement by adhering to the DMCA’s notice and take-down procedures.  A U.S. ISP has no duty to monitor its site for user-posted copyright-infringing material, but if a copyright holder notifies the ISP of the presence of its copyrighted material on the site then the ISP must “expeditiously remove or disable access to” the targeted content to maintain the liability safe harbor.  (See DMCA §512 for the complete text of the safe harbor requirements and procedures.)