Dubious Disclaimers

A student asked whether the disclaimer at Download-Crack-Serial.com served any legal purpose. One can guess at the correct answer on the site’s name alone. The language in question is this:

If you are affiliated with any government, or ANTI-Piracy group or any other related group or were formally a worker of such one or you want to eliminate this site or you have any claims on this site you CANNOT enter this web site that means you are not allowed to take ANY content from download-crack-serial.com, cannot access any content and you cannot view any of the HTML files. All the objects on this site are PRIVATE property and are not meant for viewing or any other purposes other then bandwidth space. DO NOT ENTER whatsoever! If you enter this site and you are not agreeing to these terms (Disclaimer) you are violating code 431.322.12 of the Internet Privacy Act signed by Bill Clinton in 1995 and that means that you CANNOT threaten our ISP(s) or any person(s) or company storing these files, cannot prosecute any person(s) affiliated with this page which includes family, friends or individuals who run or enter this web site. By continuing to enter this site, you are expressly and impliedly agreeing to all terms as stated above. If you disagree with this term you must leave this site immedeatly (sic).

The idea that such a contract “disclaimer”protects one from criminal or civil liability is representative of what can pass for legal knowledge on the Internet. Determine a desired outcome, invent a law to support it, wrap it up in legal-sounding language, and put it on the web. Poof! WikiLaw!

Nonsense. There is no Internet Privacy Act. Any first-year law student knows that 431.322.12 is not a form of citation to a federal statute. A contract disclaimer between a web site and a user cannot bind the rights of third parties (e.g., copyright holders or the state) because they are not in privity with the “contract.” A disclaimer of criminal liability would undoubtedly violate public policy and be void. If you rely on protection such as this to protect you from liability, then I have proposal for you. My friend is a top official of the Nigerian government, has millions of dollars trapped in the country, and needs only your bank account information . . .

Georgia Teenager Freed

Genarlow Wilson, serving a ten-year prison sentence for engaging in consensual oral sex with a 15 year-old girl at a New Year’s Eve party when he was a 17 year-old high school student, has been freed by the Georgia Supreme Court. The court ruled 4-3 that his sentence constituted cruel and unusual punishment. His mandatory ten-year sentence for aggravated child molestation “horrified” his jury, which did not know the penalty attached to their guilty verdict, and focused considerable attention on the problems inherent in mandatory sentences and in overbroad child-protection laws. Matt Towery, the Georgia legislator who drafted the original bill that formed the basis for the law under which the court convicted Wilson, explains that the “legislation would never had impacted Genarlow Wilson had it passed into law as it was originally written.” Towery’s draft bill was merged with another that raised the age of consent in Georgia from 14 to 16, turning Wilson’s consensual partner into a child victim. The revised bill included a “Romeo and Juliet” provision that treated consensual sex between a 14 or 15 year-old victim and a defendant who was not more than three years older as a misdemeanor, but this provision did not apply to oral sex. Put such a law in the hands of a zealous “law and order” prosecutor incapable of looking past the letter of the law and this is the result.

Red Sox 2, Rockies 1

Schilling looked shaky in the first and Sox hitters were uncharacteristically impatient early in the game, the Rockies needing only 19 pitches to record the first six outs. Then Schilling found a rhythm, the batters worked pitch counts, the crowd found voice, and the game settled into a 2-1 Sox lead when Okajima replaced Schilling in the 5th with one out and two Rockies on. It turned into what Schilling called the “PapaJima (Pap and Jima?) Show.” Or, maybe we can say that the Rockies were OkaBonned. A rose by any other name still amounts to Boston’s bullpen stalwarts recording the final 11 outs with only one hit, Matt Holiday’s rocket single that Papelbon somersaulted to avoid. Holiday stayed on first just long enough for Papelbon to pick him off for the final out of the 8th inning, Holiday so far astray when Youkilis made the tag that we could see daylight between the bag and Holiday’s prone body from our right field box seats, 350 feet away.

Sox v Rox Game 2

There was a new wrinkle last night in Papelbon’s ritual entry into the game. After the fist-bump, Wild Thing, and pause on the infield grass, as Papelbon fired his warm-up bullets to Varitek, the Dropkick Murphys’ I’m Shipping Up to Boston blasted through the air. This–backdrop to Papelbon’s signature Irish jig, poundingly rhythmic and loud–is a great stadium song, 30,000+ voices joining the Murphys’ lead singer’s rough voice roaring the chorus “I’m shipping up to Boston (whaa-ahh-ohh).” It was an electric and thrilling moment out of too many to count. An amazing night in Fenway. Thomas Boswell captures it: “[T]his Series deserved a taut, one-run game, a contest of nerve, a game that was as much exquisite excruciation as simple pleasure. And, in the end, it needed old heroes, men who knew the stakes because they grasp the game. That’s exactly what the Red Sox provided with a 2-1 victory that will probably be remembered as the fulcrum of this Series.”

OiNK Spin

OiNK founder Alan Ellis stated after his arrest for conspiracy to defraud and copyright infringement “I haven’t done anything wrong. I don’t believe my website breaks the law. They don’t understand how it works . . . I don’t sell music to people, I just direct them to it. If somebody wants to illegally download music they are going to do it whether my site is there or not . . . My site is no different to something like Google . . . If Google directed someone to a site they can illegally download music they are doing the same as what I have been accused of. I am not making any Oink users break the law. People don’t pay to use the site.” That would be true if Google were a members-only site organized to facilitate sharing of copyrighted music, where membership status was determined based on the quantity of content one made available for other members.

Lawyer’s Life

Scraps from the briefcase for prospective law students and lawyers:

Pay and Workweek Differentials by Law Firm Size from the Empirical Legal Studies blog charts the relationship between law firm size, associate salaries, and associate happiness. It reports that the median salary spread over the first eight years of the associate track amounts to $631,000 for associates in firms with 2-25 lawyers versus those with 500+ lawyers and to $524,000 for associates in firms with 51-100 lawyers versus those with 500+. It’s no surprise that big firm lawyers make more money but I’ve not seen a calculation showing exactly how much more. It also reports that almost 47% of lawyers at 500+ firms work more than 60 hours/week. The number of lawyers working more than 60 hours/week is 27.2% at firms with 51-200 lawyers, 19.4% at firms with 16-50 lawyers, 19.3% at firms with 5-15 lawyers, and 16.1% at firms with 1-4 lawyers. Last, it reports that 36.2% of those in firms with 1-4 lawyers report a very satisfactory work/family balance, compared with 31.3% in firms with 5-15 lawyers, 9.7% in firms with 16-50 lawyers, 10.3% in firms with 51-200 lawyers, and 4.9%–4.9%!!!— in firms with 200+ lawyers. I’ve summarized the findings. Read the original for more data and analysis.

Will Lawyers Continue to Exist? at Human Law Mediation blog entertains the notion that information technology and the ability to carve up legal work into discreet tasks–commoditization of legal work–will transform the profession. If you want an example read this piece from Legal Affairs: Are your lawyers in New York or New Delhi?

Last, Tax Prof Blog hashes data from the Princeton Review’s Best 170 Law Schools and rates schools in categories such as Professors Rock (BU is #1) and Students Lean to the Left (my alma mater Northeastern is #2).

How about a survey of undergraduate business school law faculty? Now there’s a niche market.

Sox Dance Into World Series

A few days ago the New York Times ran a story–Are the Red Sox Ready to Become the Yankees?–that asked whether the Sox are ready “to replace the Yankees as the team the nation loves to hate.” Somehow the notion exists that Sox fans take more pleasure from the franchise’s history of heart-breaking collapse than they do from success. Wrong. We managed to embrace the Patriots’ transformation from laughing stock to NFL franchise of the decade, and we’ll cope with our high expectations for the Red Sox. And no matter how successful, the Red Sox will not become the Yankees. It’s hard to imagine the Bosses Steinbrenner putting up with their pin-striped players’ dancing on the field during post-game celebrations.

Timbuk2 and Target

A friend alerted me to this story: Timbuk2 announced plans this summer to make custom messenger bags by laminating recycled advertising material such as posters, billboards, and shopping bags. Timbuk2 advertised images of these Lamitron bags bearing the Target logo. Target responded with a cease-and-desist letter expressing “concern[] that [Timbuk2’s] use of [Target’s] famous Bullseye Design mark could give the impression that these bags originate from, or are somehow sponsored by, or are otherwise affiliated with Target . . . we request that you cease use of TBI’s Bullseye Design mark on your Lamitron bags.”

This dispute is the trademark law equivalent of a remix or mash-up of a copyrighted song and exists on the cusp between traditional trademark law and 21st century marketing. The lawyer in me understands why Target sent the cease-and-desist letter. Trademark law places the onus of trademark protection on the mark’s owner, who must guard against unauthorized use of the mark, whether infringing (likely to cause confusion about the source of a product) or dilutive (weakening the identity of the mark in ways that are not infringing). To a lawyer this is a classic slippery-slope problem. It Target lets Timbuk2’s use go unchallenged then the next unauthorized use becomes harder to challenge and, at some point, the Bullseye Design loses its association with Target and becomes another piece of worthless iconic flotsam on the sea of advertising images.

Idea City, a marketing and advertising blog, argues the other side: “Shame on you, Target. This is a new era . . . Timbuk2 may be another “company” rather than a “customer”, but what they offer you is a way to keep the Target brand relevant, fresh, and at the cutting edge of fashion and design. Why in the world would you ask Timbuk2 to remove your logo from their bags?” The lawyer’s retort is “because (1) Target, not you, gets to decide how to keep its brand relevant and fresh, (2) unauthorized use of the Bullseye Design will weaken its relevance and freshness, a result that does not harm you but harms Target deeply, and (3) allowing your use would be the first big push down the slippery slope.”

Trademark law shapes the environment in which the parties confront this issue, but its concerns are not the only ones. Creativity builds on the creations of others. Danger Mouse remixes The Beatles’ White Album and Jay-Z’s Black Album to create the Gray Album. Tom Stoppard takes two minor characters from Hamlet to create Rosencranz and Guildenstern Are Dead. Alice Randall reimagines Margaret Mitchell’s Gone With the Wind through the eyes of a slave in The Wind Done Gone. Timbuk2 takes found advertising images and places them in a different context by incorporating them into its Lamitron bags. Is Timbuk2 picking stuff at random from the cultural stream and giving it new meaning, or trading on the value of Target’s property? We know what the lawyers say and what the creative types say. Is there satisfactory middle ground?

OiNK Shut Down

Members-only music-sharing site OiNK was shut down yesterday by British and Dutch police as part of an Interpol investigation. Police arrested a 24 year old man from Middlesborough, England, raided the man’s employer and home of the man’s father, and seized OiNK’s servers in Amsterdam. OiNK, a BitTorrent tracker, “hosted hundreds and thousands of torrents with over a million peers” and was a popular source for leaked pre-release albums. It’s invitation-only membership policy gave OiNK cachet and, ostensibly, greater security from music industry attack. No more. I’m curious to know more about how Interpol built its case.

RIAA v Thomas Post-Mortem

Earlier this month a Minnesota court found Jammie Thomas guilty of copyright infringement for sharing 24 copyrighted songs through Kazaa and awarded the RIAA $222,000 in damages. A few things came to light after trial. First, the jurors did not disagree about Thomas’s guilt, only about the amount of damages she should pay. The 4.5 hours of deliberations started with some jurors believing she should pay the maximum of $150,000 per incident, or $3.6 million total. More moderate views prevailed and they settled on $9,250 per incident. Thomas has moved the court to reconsider the damage award but since the award was on the low end of the possible range I don’t see a good argument to do so.

Second, Thomas is sticking to her story that she is not guilty because someone spoofed her IP address, taking aim at one juror who said he has never been on the Internet. “”They admit that they are computer illiterate. This person (Hegg) has never been on the Internet, so how can he say whether my story is possible? I’ve been contacted by Internet security experts who said that spoofing my address would have been trivial. Internet illiterate people are not going to be able to understand that.” The problem for Thomas is that none of the jurors bought her story. She didn’t offer any expert testimony to support it because, she says, she could not afford to do so. She could afford not to settle–the average RIAA file-sharing suit settlement is $4,000–and chose trial knowing that she could not afford to put on her defense? Sorry, Jammie but that makes no sense at all.

Like Chalk Across a Blackboard

If, when you were growing up, your family always said “you should be a lawyer” or “you’ll make a great lawyer some day!”, what did it mean? It meant you were an argumentative, stubborn–and possibly obnoxious–pain in the butt. Not all lawyers fit that mold–I don’t, of course–but the popular conception of attorney-as-irritant finds constant reinforcement. Take these two stories: A Lawyer Bride Sues Her Florist (Wall Street Journal-Subscription Required) and At Firms With “No Jerks” Rules, Abusive Attorneys Need Not Apply. The first reports on New York litigator Elena Elbogen’s breach of contract suit against Posy Floral Design Studios for “substitut[ing] pastel pink and green hydrangeas for the dark rust and green hydrangeas that she had specified for the centerpieces . . . using wilted and/or browned flowers, leaving the event without filling half the centerpiece vases with water, and using dusty and dirty vases.” The bride and groom paid $27,435.14 for the flowers and are seeking $400,000 in damages. Stamos Arakos, co-owner of Posy Floral Design, responded “My father used to tell me, ‘Don’t deal with lawyers.’ Maybe he was right, God bless his soul.”

The “No Jerks” article discusses how companies are adopting hiring and firing practices to reduce the number of abusive bosses: “The emergence of these practices should be of particular interest to those working or hoping to work in the legal industry, where the only thing larger than the significant book of business may be the bearer’s ego.” For example, Perkins Coie began dealing directly with incidents of abuse a few years ago. “Associates who frequently yell at or mistreat secretaries damage their prospects of becoming partners” and Fortune magazine named the firm in its Top 100 Best Places to Work for five years in a row. This sounds great, and the article states firms are implementing these practices “regardless of how many hours the offenders bill or how much business they generate,” but I’m dubious about the last statement. I bet that a few million dollars in annual billings would still buys considerable latitude for jerky behavior in most firms.