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.)

“Astonishing” Criminal Liability for YouTube Video

In another European case I’ve blogged about before (herehere, and here), yesterday an Italian court convicted three Google executives of criminal privacy violations in a case arising out of a 2006 YouTube video of the bullying of an autistic boy, posted to YouTube by his abusers.  The court imposed suspended three- to six-month sentences on three of the executives charged, acquitting them of defamation along with another executive facing only the defamation charge.  Google, which said it plans to appeal, called the result “astonishing.”  One of the convicted defendants–who is Google’s global privacy counsel–said “[t]he judge has decided I’m primarily responsible for the actions of some teenagers who uploaded a reprehensible video to Google video.” Google’s senior vice president and chief legal officer and its chief financial officer were also convicted.  The Wall Street Journal article stated “[t]he trial could help define whether the Internet in Italy is an open, self-regulating platform or if content must be better monitored for abusive material.”

U.S. law, specifically Section 230 of the Communications Decency Act, would shield Google from liability because the actionable video was created and posted online by a third party. To put it in the language of Section 230,  Google would not be liable because it was not the video’s information content provider; it was not “responsible, in whole or in part, for the creation or development of” the video.  U.S. law recognizes the impracticability–or impossibility–of screening tens of thousands of posts and other items created by Internet users.  This case, and the French case discussed in the prior post, show how far the Internet has come from that described in John Perry Barlow’s Declaration of the Independence of Cyberspace:

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind . . .  You have no sovereignty where we gather . . . I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear.

Or not.

Louis Vuitton Wins Again

Or, eBay Loses Again in France.  Last week the Paris District Court held eBay liable for using LVM’s trademarks as AdWords to, according to an eBay spokesperson, “direct buyers’ listings for authentic goods from eBay sellers.”  The court ordered eBay to pay 230,000 € for damages and LVM’s legal fees and 1,000 € for every future violation.  LVM and eBay have duked it out before; in June 2008 LVM won a suit against eBay over auctions of counterfeit Louis Vuitton handbags, the court holding that eBay did not employ adequate measures to prevent the sale of fake goods.  Last year the Paris District Court fined eBay for continuing violations of the 2008 order.

Other luxury retailers have sued eBay for similar claims on both sides of the Atlantic.  In August 2008 a Belgian court ruled for eBay in a suit over the sale of counterfeit Lancome perfumes.  The court held “that eBay is a passive provider of ‘host’ services, as that term is defined in a European Community policy directive, and that it’s therefore entitled to more legal leeway than a brick-and-mortor auctioneer would receive if counterfeit goods were being sold on his premises,” reasoning that echoes what one would expect to be the outcome of the same claim under U.S. law.  In July 2008 (eBay had a busy summer) Tiffany and Company lost a suit in federal court in New York City for trademark claims arising from eBay auctions of counterfeit trademarked goods.  That court held “to the extent that eBay may have possessed general knowledge of infringement and dilution by sellers on its Web site, eBay did not possess knowledge or a reason to know of specific instances of trademark infringement or dilution as required under the law”–a clear expression of the difference between U.S. and French law on website liability.

Love That Nasty Salmon

Google Voice gives users a phone number that can dial multiple phones when called.  Mine rings my mobile, home, office, and Maine numbers.  I’ve given it to my immediate family and close friends so they don’t have to chase me if they want to get in touch.  If I don’t pick up one of the phones Google Voice records the caller’s message, transcribes it, and texts the transcription to my mobile.  I can also listen to the message at the Google Voice website.  A text message of the transcription is great in theory.  Current transcription software is not great in practice.  Here’s the transcription of Judy’s voice mail asking that I buy fish for dinner for my sister’s visit.

Hey there. Let’s see, it’s me and when you get this on the way home so we need tomorrow night for one. Barbara 20, just pick up and I think you know, big nasty nice piece of salmon. Hey potatoes in brussels sprouts, so we have to rest okay. Thanks.

“Big nasty nice piece of salmon.”  It makes one’s mouth water.