And Yet Again

In 2007 RIAA v Jammie Thomas-Rasset (she was just Jammie Thomas then) resulted in a jury verdict and damages of $222,000 in favor of the RIAA.  A few months later the trial judge had second thoughts about his instructions to the jury and ordered a new trial.  In 2009 RIAA v Jammie Thomas-Rasset II:  Oops I Did It Again resulted in a jury verdict and damages of $1.92 million in favor of the RIAA.  A few weeks ago the trial judge reduced the damages to $54,000.  Last week the RIAA rejected the reduced award but offered to settle with Thomas-Rasset for $25,000.   She rejected the settlement, setting the stage for RIAA v Jammie Thomas-Rasset III:  Damages, in which the only issue will be how much the RIAA receives from its suit.  Her attorney has committed already to RIAA v Jammie Thomas-Rasset IV:  Oops the 8th Circuit Affirms the Constitutionality of Copyright Damages, the Supreme Court Denies Cert, and Thomas-Rasset Has Her Legacy.

Who knows. I am Mr. Glass Half-Empty. Maybe this will turn out not to be a disaster for Thomas-Rasset.

Look Me In the i

Starting this summer, when our clickstream data and demographic profile trigger delivery of online ads, the ad will contain a little blue <i> icon, perhaps words such as “Why did I get this ad?,” and a link to a site explaining how the advertiser uses the collected data.  Advertisers agreed to the new policy hoping to avoid stricter federal regulations governing electronic collection and use of personally identifiable information.   The “Power I” is the brainchild of the Future of Privacy Forum.

Duty to Rescue

Having discussed the bystander rule in the first week of Introduction to Law and with tort law coming up this week, this chart “of state statutes that impose a duty to rescue crime victims, or report crimes” from The Volokh Conspiracy is timely.  The chart covers only ten statutes that apply to the general public, not special duties imposed by legislation on “doctors, teachers, and the like.”  All of the statutes listed save Ohio’s exempt a bystander if rescuing or reporting would imperil the bystander.   Thus in Vermont “a person who knows that another is exposed to grave physical harm shall  . . . give reasonable assistance to the exposed person unless that assistance or care is being provided by others . . .  to the extent that the [assistance] can be rendered without danger or peril to himself or without interference with important duties owed to others.”  Remember the final episode of Seinfeld where Jerry, Elaine, George, and Kramer watch, video, and laugh about a nearby assault, and then are arrested and convicted for not coming to the victim’s aid?  I was not aware there is a Massachusetts statute that might actually apply:  “Whoever knows that another person is a victim of aggravated rape, rape, murder, manslaughter or armed robbery [or hazing] and is at the scene of said crime shall report said crime to an appropriate law enforcement official as soon as reasonably practicable to the extent that said person can do so without danger or peril to himself or others.”  A violator faces a fine of up to $2,500 or, in a case of hazing, up to $1,000.  Some statutes impose the duty only in situations involving crimes against children, others apply more generally to situations involving “bodily harm” or “grave physical harm.”

Why There Will Always Be Plumbers

When I woke at 6 am the temperature outside was 15 degrees.  That inside was 57 degrees.  The moment I left the bedroom I knew the boiler was off.  A trip to the basement confirmed the boiler was stone-cold.  I switched off its power, waited 30 seconds, and switched the power on.  Nothing.  The pilot did not light.  I remembered dimly that there was another step I could take to start it but staring at the copper pipes and sheet-metal duct did not jar my memory.   I went to the kitchen and called our plumber, Steve.  I expected to get his service and leave a message but he picked up on the third ring.  I described the problem as I returned to the basement.  “Did you hit the switch on top, on the duct?”  “What switch?”  “On top, on the duct.”  As I peered in to look at a metal box affixed to the duct I heard the low whoosh of the gas jets in flame.   “Damn”  I said, “you are good.  The boiler reignited just by talking to you.”  “It shouldn’t have gone off, though.”  “No, it shouldn’t, and you’ll remember it happened last winter.”  “That time you called just as I was leaving church.  (I’d forgotten it also happened last year on a Sunday.)   Today I’m just going to church.”  We talked about possible causes for a few minutes, he said he’d talk to some of his heating guys, and we rang off.

Steve is on our short list of contacts.  We’ve known him since our kitchen renovation two years ago.  When we need a plumber, usually we need him NOW, and Steve has always come through.  While in college I never thought about having a plumber on call.  Now it’s essential.

My old business partner turned his energies to education when we dissolved our business.  He taught social studies in the Boston Public School system for about five years.  Lately he’s been trying to establish a charter school.  His premise is that our education system focuses too much on college as the goal and fails to educate students about non-college careers.  In most school systems vocational education is the poor cousin to the college prep, Advanced Placement, we-measure-our-success-by-how-many-graduates-matriculate-at-four-year-colleges curriculum.  He says another metric is equally important:  how many of those high school graduates who attend college obtain college degrees?   What’s the point of getting students into college if they don’t have the skills they need to prosper there?  College is not a good choice for everyone.  High schools should encourage, develop, and celebrate the success of students who go into trades, who become plumbers and electricians and HVAC contractors.  These jobs cannot be outsourced to India and when you wake on a frigid Sunday morning to a cold house with a broken boiler, you are not going to call an investment banker.  Or a lawyer.

Newsworthiness and Privacy

I’m having great fun doing a directed study this semester on privacy law.  Today the student emailed, saying she was torn between two deeply-held principles:  the First Amendment protects our right to receive all the information we need to make informed choices, without screening or censoring, and our natural right to privacy and human dignity ensures that we can control, hold inviolate, aspects of our person and personality from public view.  She was provoked by a scholarly comment on Diaz v. Oakland Tribune, 188 Cal. Rptr. 762 (Ct. App. 1983).  In Diaz a student elected as a community college student-body president sued the Oakland Tribune newspaper for invading her privacy by revealing  her transsexuality.  The appeals court ruled that her case could proceed to trial to allow a jury to decide whether her transsexuality was newsworthy.  The court instructed the jury “[i]n determining whether the subject article is newsworthy you may consider [the] social value of the fact published, the depth of the article, [its] intrusion into ostensibly private affairs, and the extent to which the plaintiff voluntarily acceded to a position of public notoriety.”   My student agreed that Diaz’s transsexuality was a private matter, not relevant to whether she could discharge the responsibilities of her elected office.  She also agreed with Eugene Volokh’s criticism of the Diaz decision:

Now I agree with the court’s factual conclusion; people’s gender identity strikes me as irrelevant to their fitness for office. But other voters take a different view. Transsexuality, in their opinion, may say various things about politicians (even student body politicians): It may say that they lack attachment to traditional values, that they are morally corrupt, or even just that they have undergone an unnatural procedure and therefore are somehow tainted by it. These views may be wrong and even immoral, but surely it is not for government agents–whether judges or jurors–to dictate the relevant criteria for people’s political choices, and to use the coercive force of law to keep others from informing them of things that they may consider relevant to those choices. I may disagree with what you base your vote on, but I must defend your right to base your vote on it, and the right of others to tell you about it.*

Newsworthiness versus privacy.  The First Amendment versus inherent human dignity.  Which do you choose?

*Eugene Volokh, Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People From Speaking About You, (52 Stanford L. Rev. 1049 (2000))  http://www.law.ucla.edu/volokh/privacy.htm

Mine is “this is not my password”

One one hand we have the spectre of cyberattacks that cripple critical systems–credit, water, electricity, and our “dispiriting” defenselessness.  On the other hand we have the ten most popular passwords, based on analysis of millions of passwords stolen from software developer RockYou:

  • 123456
  • 12345
  • 123456789
  • password
  • iloveyou
  • princess
  • rockyou
  • 1234567
  • 12345678
  • abc123

We are a remarkable species.  It’s a wonder we’ve survived this long.

More Threatening Than Underwear Bombers

Here’s a chilling story (“In Digital Combat, U.S. Finds No Easy Deterrent”) about the U.S.’s vulnerability “to a sophisticated cyberattack aimed at paralyzing the nation’s power grids, its communications systems or its financial networks.”   The –Pentagon war game, modeled on recent attacks on Google and other companies, left its participants “dispirit[ed]–

The enemy had all the advantages: stealth, anonymity and unpredictability. No one could pinpoint the country from which the attack came, so there was no effective way to deter further damage by threatening retaliation. What’s more, the military commanders noted that they even lacked the legal authority to respond — especially because it was never clear if the attack was an act of vandalism, an attempt at commercial theft or a state-sponsored effort to cripple the United States, perhaps as a prelude to a conventional war.

Among many sobering post-game realizations was this:  a cyberattack could target private institutions and “cripple a country . . . without ever taking aim at a government installation or a military network.”  A participating deputy defense secretary compared the current Internet security measures protecting major institutions to the Maginot Line:

A fortress mentality will not work in cyber . . . We cannot retreat behind a Maginot Line of firewalls. We must also keep maneuvering. If we stand still for a minute, our adversaries will overtake us.

Lest you think the underwear bomber reference gratuitous, it’s prompted by Bruce Schneier’s criticism of airport security theatre in the wake of the attempted Christmas Day attack:

[T]he proposed fixes focus on the details of the plot rather than the broad threat . . . The problem with all these measures is that they’re only effective if we guess the plot correctly. Defending against a particular tactic or target makes sense if tactics and targets are few. But there are hundreds of tactics and millions of targets, so all these measures will do is force the terrorists to make a minor modification to their plot.

As I said, it’s chilling.

RIAA Damages Reduced

Jammie Thomas-Rassert of Minnesota was the first defendant in an RIAA music-piracy lawsuit to go to trial.  She lost big, appealed, the trial judge decided he mis-instructed the jury on the law and ordered a new trial, she lost again, although even bigger–$1.92 million–and appealed again.   A federal judge just reduced the “shocking” damage award to $54,000.  Good news, perhaps, for BU’s own Joel Tennenbaum and the $675,000 damage award imposed by a jury last summer.