One Small Step for BitTorrent,

. . . One giant leap for the mainstream media. The headline of Steven Schwankert’s terse article on InfoWorld.com (29-Nov-06) says it all: BitTorrent makes deals with major studios. 20th Century Fox, Kadokawa Pictures USA, MTV Networks, Lionsgate Entertainment, and Starz Media have entered into licensing agreements to rent or sell movies and television shows on the BitTorrent website.

At-Will At Work

The Scotts Company, manufacturer of fertilizer and other lawn care products, forbids employees from smoking tobacco products–on or off the job. In September Scotts’ subjected its employee Scott (love these coincidences) Rodrigues of Buzzards Bay, MA to a urine test, which disclosed nicotine in his system. Scotts fired Rodrigues for violating its no-smoking policy. The Boston Globe reported today that Rodrigues filed a wrongful discharge suit against the company in Boston’s Suffolk Superior Court, claiming it violates public policy to terminate him for engaging in a legal activity. Harvey A. Schwartz, Rodrigues’ lawyer, believes this is the first case of its kind in Massachusetts.

This may be the first case in Massachusetts, but it is not the first time a company has terminated an employee for smoking cigarettes. For example, in 2003 Weyco, Inc., a Michigan health-care company, received national attention after adopting its “healthy lifestyle” policy and announcing that it would no longer hire or, after January 1, 2005, continue to employ smokers. Weyco offered smoking-cessation services at its expense to employees who wanted to quit, and it stuck to its policy. When it went into effect in 2005 Weyco fired four employees for refusing to submit to tests to determine the presence of nicotine, and another employee quit before the policy went into effect.

Scotts, like Weyco, adopted its no-smokers policy to attempt to reduce the costs of employee medical coverage. The Globe article quotes a Scotts’ spokesman: “We’re not interested in dictating our employees’ behavior in their free time because it doesn’t affect us . . . but the issue of smoking we deem different because there is no dispute whatsoever that there’s a direct correlation between increased health risk and healthcare costs. So what we’re really saying is we’re not willing to underwrite the risks associated with smoking.”

According to The Globe, Rodrigues knew of Scotts’ no-smokers policy when he took a job early in 2006. Scotts does not administer random drug tests to employees but Rodrigues had received a written warning that his smoking was an issue after a supervisor saw a pack of cigarettes in his car, thereby giving Scotts reason to single him out for testing.Rodrigues does not have a claim for employment discrimination — his status as a smoker does not make him a member of a protected class in Massachusetts, which has no law protecting smokers.

Today, smokers; tomorrow, those who eat too much Ben & Jerry’s? Beyond such obvious tongue-in-cheek scenarios, the practice of terminating employees for engaging in legal activities that can affect a company’s bottom line has insidious implications. I downhill ski (increasing my risk of ACL and MCL injuries), ride a road bike (increasing my risk of head injuries), swim alone in a lake (increasing my risk of drowning), often use a gasoline-powered chain saw (increasing my risk of death or injury from saw kickback), and yes, in fact, I eat way too much ice cream (increasing my risk of cardiovascular disease and obesity, which in turn increases my risk of divers ailments). I can distinguish the risk of smoking from the risks associated with all of these activities, but the problem is opening that door in the first instance.

Sacha Pfeiffer, Off-the-job smoker sues over firing, The Boston Globe 30-Nov-06, p. 1; Marisa Schultz, Amy Lee, & Eric Lacy, Workers fume as firms ban smoking at home, The Detroit News, 27-Jan-05; Company Fires All Employees Who Smoke, WRAL.com, 25-Jan-05

None Of MP3.com

Russian music-sharing site AllofMP3.com gathered considerable attention in recent years, much of it accompanied by rose-tinted and dubious analysis of its legality. AllofMP3.com offered CD-quality music tracks for sale and download at low prices, e.g. $1.50 or less per album. AllofMP3.com claimed its service was protected by licenses from the Russian Multimedia and Internet Society. The scope of those licenses and whether they authorized AllofMP3.com to distribute licensed content everywhere in the world, were murky, (1) but the site’s supporters claimed (among other things) that because “the authority concerning intellectual property stems from individual countries” one in the U.S. who downloaded files from a Russian site was covered by Russian, not U.S., copyright laws. (2) This is certainly a novel interpretation of state sovereignty. The same argument would support the legality of downloading, say, child pornography in the U.S. from a country where it was legal to do so, because the authority concerning legality of child pornography also stems from individual countries.

In any event, AllofMP3.com has entered the ranks of ex-Internet music-download sites. Techcrunch reported (sourced from a document from the Office of the U.S. Trade Representative posted on Digg) that Russia agreed to shut AllofMP3.com and other sites that “permit illegal distribution of music and other copyright works.” Under the heading Fighting Internet Piracy the document summarizes the U.S. – Russia agreement as follows:

  • The United States and Russia agreed on the objective of shutting down websites that permit illegal distribution of music and other copyright works. The agreement names the Russia-based website allofmp3.com as an example of such a website.
  • Russia will:
    • take enforcement actions against the operation of Russia-based websites; and
    • investigate and prosecute companies that illegally distribute copyright works on the Internet.
  • Russia will work to enact legislation by June 1, 2007, to stop collecting societies from acting without right holder consent,
  • Russia will also work to enact legislation implementing the 1996 World Intellectual Property Organization (WIPO) Internet treaties.

The document summarizes other Russian enforcement activities including those focused on optical disc piracy, pharmaceutical test data, criminal activities, and border enforcement
(1) Is allofmp3.com legal?, Tech Law Advisor, 28-Apr-04; (2) AllOFMP# is Legal – And Cheap to Boot, FADMINE
Russia Agrees To US Request To Shut Down AllofMP3.com
, Techcrunch 28-Nov-06

Vanishing Trials

Take note, prospective trial lawyers: the route to the courtroom travels an increasingly-narrow path. The number of civil trials has declined steadily over the past 40 years to the point that only 1.8% of all civil cases filed in federal court result in trials. The number of civil trials in state courts shows a similar decline. I would not have guessed the number to be so small. Today’s Boston Globe reports “[b]ecause of the high cost of going to trial, fear of unpredictable jury verdicts, and other factors, many cases instead are being resolved through settlements, mediation, and arbitration, which litigants often prefer to the emotional ordeal of going to court.” Rational reasons all, but (as The Globe reports) fewer trials means fewer experienced trial lawyers, a problem compounded by staffing practices in large corporate firms. If you hire Bob Popeo to represent you in a civil matter then, if your case is one of the 1.8% that goes to trial, you want Bob Popeo as lead counsel in the courtroom, not not one of Popeo’s talented younger partners and certainly not a litigation-department associate, no matter his or her academic pedigree. When the Popeos of the litigation bar retire, however, the ranks of lawyers with trial experience will grow successively thinner with each generation. As high as the stakes and arduous as the preparation for a summary judgment motion might be, it is not the same experience as a multi-day trial.

The article points out some of the steps firms are taking to enable younger lawyers to gain trial experience, such as handling pro bono cases through the Boston Bar Association’s Volunteer Lawyer’s Project. Shortly after its inception in 1977 I worked as a paralegal at the Volunteer Lawyer’s Project. VLP is worthy for its pro bono client services and for the hands-on opportunities it provides to attorneys. Taking a case through the Volunteer Lawyer’s Project may increase a lawyer’s chance of trying a case but trials are no more numerous in those cases than they are in civil limitation in general.

Civil trials are terrible vehicles to resolve disputes, contentious, ridiculously expensive, and emotionally draining, and I don’t bemoan their paucity. The scarcity of trials underscores a disconnection I experience in just about every conversation with wannabe law students, who think of litigation when they think of the law: most lawyers are not litigators. For every lawyer in the litigation department of a large corporate firm there are often 5-10 lawyers in other practice areas. They are real estate lawyers, corporate lawyers, trusts and estates lawyers, tax lawyers, municipal finance lawyers, environmental lawyers, they almost never set foot inside a courtroom (testifying as a witness for a deal gone wrong doesn’t count), and they practice outside the gaze of Court TV, law-based TV shows and movies. We will never see a television drama called Bond Counsel or Fiduciary (well, maybe on cable), which means most pre-law students will experience the law through the distorted and diminishing prism of trials.

Sacha Pfeiffer, Few chances for lawyers to develop trial skills, The Boston Globe 29-Nov-06, p.1

Britain to Reject Copyright Extension

A report commissioned by the British treasury is recommending not to extend the term of copyrights on recorded music from 50 year to 95 years, an extension pushed by Cliff Richard–excuse me, Sir Cliff Richard–the “British Elvis.” The proposed extension would apply only to recording artists; the British copyright for composers is currently 70 years after the composer’s death. Peter Jamieson, chairman of the British Phonographic Industry, bemoaned the report’s recommendation: “There can be no rationale for discriminating against performing artists . . .” Failure to extend copyright would mean that recordings of, say The Beatles, would begin to lose copyright protection in 2012, the 50th anniversary of their release of Love Me Do.

The difference in treatment between copyrights for recording artists and composers is noteworthy, yet it is hard to be find any policy other than selfishness in quotes such as this, from music journalist Neil McCormack: “You can make a record in 1955 and have been getting royalties . . . Suddenly they’re gone.” Well, yes. Copyrights–in Britain as in the U.S.–have never been perpetual. Their goal is to protect and foster creativity by granting the creator a limited monopoly, not an irrevocable annuity. One who recorded a song (or composed a score, wrote a book, painted a picture, or otherwise followed her muse) in 1955 or 1965 or 1975 was, obviously, sufficiently motivated and protected by the then-existing term of copyright to create. Extending the term of their protection now does not foster new creativity in the artists protected. It extends the monopoly to the few without obvious benefit to the many and further erodes the longstanding distinction between intellectual property (limited in scope and duration) and real or personal property.

Musical copyright terms ‘to stay’, BBC News, 27-Nov-06

Massachusetts Sues for Big Dig Negligence

On July 10 part of the ceiling of the tunnel connecting I-90 and Logan Airport collapsed and killed Milena del Valle, who was driving beneath. The ceiling collapse and del Valle’s death caused the tunnel to be closed for months for repairs and provoked furious finger-pointing among state officials and the Big Dig’s managers, contractors, and designers. Two months ago a grand jury convened to investigate possible criminal charges, something I wrote about in Big Dig, Big Liability? Nothing has come yet from the grand jury.

The state is not resting, however. The Boston Globe reported this morning that outgoing Attorney General Tom Reilly will file a lawsuit today against Bechtel/Parsons Brinckerhoff, the joint-venture manager of the Big Dig, Bechtel Corp. and Parsons, Brinckerhoff individually, Modern Continental Construction Co. and Gannett Fleming, the builder and designer, respectively, of the I-90 connector tunnel ceiling, and Sika Corp., Powers Fasteners, and Newman, Renner, Colony Inc., the manufacturer, wholesaler, and distributor, respectively, of the epoxy used to fasten the ceiling’s connector bolts. The state seeks undetermined damages for gross negligence, negligence, and breach of contract. Central to the state’s claim are the same allegations noted in the earlier post: that (1) the ceiling was originally designed to require more anchor bolts, (2) managers modified the original design because they believed “a 2 bolt anchor plate would be sufficient” to support the multi-ton concrete panels, (3) managers tested the bolts’ strength using standards less rigorous than industry rules-of-thumb, (4) some bolts passed these tests but failed when subjected to their working loads, and (5) managers knew of such failures but didn’t either redesign the ceiling’s anchoring system or more carefully supervise its installation could establish the basis for criminal culpability. The named defendants represent every step in the ceiling’s progress from design through constructionexcept, it is interesting to note, for those involved in manufacture and distribution of the connector bolts.

Reilly is a lame-duck and leaving office soon, having run unsuccessfully for governor this fall. The Globe reported that Reilly filed the suit now, instead of handing it off to incoming attorney general Martha Coakley, in part to beat a six-year statute of limitations applicable to litigation for defective construction and in part to cap the work of staff assigned to investigate the claims. Reilly has reportedly briefed Coakley on the lawsuit.

Scott Allen & Sean P. Murphy, AG, alleging negligence, will sue in tunnel cave-in, The Boston Globe, 27-Nov-06, p. 1

Online Gaming Smorgasbord

The Unlawful Internet Gambling Enforcement Act has created interesting ripples. Before the recent election there was speculation that the Republican-sponsored Act, which imposes civil and criminal penalties on financial institutions that process transactions with online gaming sites, could affect the fortunes of some house races. “‘I’ve been a loyal Republican for over 30 years, and I’m quitting the party I once loved,’ said Jim Henry, 55, who lives outside San Francisco. ‘Not because of the Mark Foley scandal or Middle East policy. But because the Republican Party wants to stop me from what I love to do: play poker over the Internet.'” The Republicans, of course, lost the control of both houses of Congress, although I’ve read nothing that suggests opposition to the Act materially affected the outcome. Reactions to the Act underscore a split in Republican voters, between religious conservatives who oppose gambling on moral grounds and libertarians who object to government regulation of a private recreational activity.(1)

Since President Bush signed it into law on October 13 the Act has had serious financial consequences for online gaming companies. Traffic to Internet gaming sites by U.S. residents dropped 56% in the month following the Act’s passage and companies such as Sportingbet PLC (60% U.S.-based business) and Party-Gaming PLC (80% U.S.-based business). Investors sold off shares of publicly traded gambling companies; PartyGaming PLC saw more than half of its market capitalization disappear (£2 billion), Sportingbet PLC lost £500 million, and other publicly-trade companies experienced major losses.(2) Companies like PokerStars continue to operate, offering online poker games that they argue are games of skill, not chance, and therefor outside the Act’s reach.(2)

Meanwhile, BetOnSports PLC settled a civil lawsuit filed by the U.S. Attorney in St. Louis by agreeing (a) not to take any bets from U.S. residents, (b) to take out advertisements in U.S. newspapers telling readers that online gambling is illegal in the United States, and (c) to establish a toll-free number to advise customers how to obtain refunds of wagers placed before the suit was filed. BetOnSports, which did not admit any wrongdoing in settling the case, said it plans to concentrate its business on the Asian market. BetOnSport’s CEO David Carruthers, who was arrested in July along with other BetOnSports employees for conspiracy, fraud, and racketeering charges, still faces criminal charges and is in custody in St. Louis.(3)

The U.S. has also stepped-up enforcement of existing criminal statutes. One week ago law enforcement officials announced the prosecution of a “billion-dollar-a-year gambling ring,” charging 27 people with “enterprise corruption, money laundering, and promoting gambling.” The gambling ring allegedly centered on a web site through which bettors, supplied with a secret code, could track bets placed with bookies on football, baseball, basketball, and other sports. Police say that defendant James Giordino, the putative mastermind, ran the gambling operation from a laptop that he never let out of his sight–until he left it behind in his hotel room while attending a wedding on Long Island in 2005. Police hacked into the computer (presumably subject to a warrant) and discovered information that led to the recent arrests. Prosecutor seek forfeiture of $500 million in assets.(4)

  1. Adam Goldman, Did Republicans overplay their hand with the anti-Internet gambling bill? FindLaw, 2-Nov-06
  2. Sean F. Kane, New Legislation Forces Gaming Sites to Decide When to Hold ‘Em and When to Fold ‘Em, Internet Law & Strategy, 3-Nov-06; Associated Press, Traffic to online gambling sites drops in wake of new U.S. law, SiliconValley.com, 14-Nov-06
  3. Associated Press, U.S., BetOnSports Settle Civil Case, 10-Nov-06, The Wall Street Journal; CBS/AP, 11 Charged in Web Gambling Crackdown, CBSNews.com, 18-Jul-06
  4. Associated Press, Criminal charges brought over online gambling, MSNBC.com, 15-Nov-06

UMG Sues MySpace

I’ve written about YouTube’s copyright dilemma: its unlicensed copyright-protected user-posted content draws considerable viewer traffic (good for revenue) and legal heat from copyright owners (potentially very bad for revenue), and Google has reserved about $224 million of the amount if paid to acquire YouTube to settle prospective copyright infringement claims. This week brought news of Universal Music Group’s copyright infringement suit against MySpace on similar facts. UMG claims that MySpaces’s video uploading and link-sharing tools enable copyright infringement and that “MySpace encourages this rampant infringement so that it can drive more traffic to MySpace.com, thereby increasing defendants’ advertising revenue and profits at [UMG’s] expense.” One facet of UMG’s claim concerns re-posting of copyrighted files by users after MySpace has removed the original unlicensed copyright-protected file. MySpace (like YouTube) follows DMCA safe-harbor procedures and takes down files after receiving notice from copyright holders that the files have been posted without permission. UMG claims that users often immediately re-post such files and that the DMCA does not require it to initiate a new notice-and-take-down request for such files–unexplored territory under the DMCA, as far as I know.

Wendy Davis, Universal Music Sues MySpace, Online Media Daily, 20-Nov-06

Lydia Cacho

Ali, an AFC reader, posted this as a comment to Worldwide Press Freedom Index article. It deserves more attention so I’m posting it here:

This month’s Glamour magazine presents a revealing article about the lack of press freedom in Mexico. In focuses on Mexican journalist Lydia Cacho (Glamour Magazine, pg. 224). This courageous woman writes about the toughest criminals of Mexico: the established pedophile rings in Cancun, the poverty of Cancun’s local residents who were forced to move outside the attractive tourist area, the HIV epidemic, domestic violence, and government corruption. Writing about these topics takes a great amount of courage because of the lack of journalistic freedom in Mexico; Cacho experiences constant threats on her life. In the past, she has been brutally beaten, raped, and sued for libel for her exposes. Last year, a Mexican governor was caught allegedly plotting to have her arrested and killed. The means taken to put restrictions on freedom of the press are atrocious.

Mexico ranks number 132 on the Worldwide Press and Freedom Index. Brave journalists such as Cacho deserve to be admired for their hard work and the selfless risks they take every day to create awareness about their countries’ crises that would otherwise lurk in the dark.

The Glamour article is here: http://www.glamour.com/news/feature/articles/2006/10/30/globaldiarymexico06dec. It is worth reading.

Thanks Ali.

Borat’s Easy Targets

I have not seen Borat: Cultural Learnings of America etc. etc. but I know Sacha Cohen’s Borat shtick from Da Ali G. Show. I ‘ve always found Cohen’s comedic setups, whether as Borat, Ali G., or Bruno, to be quite funny and very discomforting, relying as they do on the audience knowing what those interacting with Cohen’s characters do not: they are being spoofed. The appeal of inside jokes is that they draw a line between Us (funny!) and Them (incredibly clueless!). The problem with inside jokes is that when you move outside the comfort of your safe social circle you become someone else’s incredibly-clueless Them. So I agree, sort of, with an Op-Ed piece in yesterday’s New York Times:

The genius of Sacha Baron Cohen’s performance is his sycophantic reverence for his audience, his refusal to challenge the sacred cows of the educated bourgeoisie. During the movie, Borat ridicules Pentecostals, gun owners, car dealers, hicks, humorless feminists, the Southern gentry, Southern frat boys, and rodeo cowboys. A safer list it is impossible to imagine.

Cohen understands that when you are telling socially insecure audiences they are superior to their fellow citizens there is no need to be subtle. He also understands that any hint of actually questioning the cultural suppositions of his ticket-buyers — say by ridiculing the pretensions of somebody at a Starbucks or a Whole Foods Market — would fatally mar the self-congratulatory aura of the enterprise.(1)

As educated bourgeoisie who regularly patronizes Starbucks and Whole Foods, I have four things to say:

  • Ouch;
  • I agree that skewering Cohen’s targets is like shooting fish in a barrel,
  • My friends would pay full fare to watch Borat interact with customers and “sales associates” in our local Starbucks and Whole Foods Market; and
  • Borat didn’t earn $67.1 million in ten days from the mocha half-caf skim latte and lo-fat raspberry granola crowd alone.

(1) David Brooks, The Heyday of Snobbery, The New York Times, 16-Nov-06