Another environmental concern

Over the past decade law enforcement has cracked down on the production of methamphetamine, shutting over 100,000 homemade meth labs. Many of these labs were located in private homes. During production methamphetamine residue lodges in carpets, upholstery, drapes and other surfaces. When these former meth labs are sold unwitting buyers are exposed to the residue and suffer respiratory problems, severe enough in some cases to require the residents to vacate the homes. As reported in The National Law Journal on March 17 some buyers have sued the sellers and brokers involved in the sale for their failure to disclose the property’s former use as a meth lab. The article cites two state trial court decisions–Taylor Bean & Whittaker Mortgage Corp. v Wagner in Ohio and Bloor v Fritz in Washington–involving such claims; the Washington case is on appeal following the trial’s award of $94,000 in damages from the seller and broker to purchasers who were forced to move because of methamphetamine contamination. Fourteen states have passed laws mandating that owners disclose their property’s use for production of methamphetamine, and 13 states require that sellers clean up such former labs before selling them.

Rumplestilts-berg

Maybe Mark Zuckerberg’s youth–he’s 23–explains Facebook’s ham-fisted schemes to weave its users’ personal information into skeins of gold. I don’t believe his purposes are nefarious. As Facebook Beacon and Facebook Social Ads show, he does have a knack for letting dollar signs get ahead of his judgment. He is developing a skill for reversing field when what looked like a great idea around the boardroom table runs into the buzzsaw of user opinion.

First a recap. A few weeks ago Facebook announced Facebook Beacon, “a new way to socially distribute information on Facebook.”

The websites participating in Beacon can determine the most relevant and appropriate set of actions from their sites that users can distribute on Facebook. These actions can include posting an item for sale, completing a purchase, scoring a high score in an online game or viewing of video. When users who are logged into Facebook visit a participating site, they receive a prompt asking whether to they want to share those activities with their friends on Facebook. If they do, those friends can now view those actions through News Feed or Mini-Feed stories.

In other words, if a Facebook user lists items for sale on eBay or buys a movie ticket on Fandango, a pop-up asks whether the user wants to share this news–and on Facebook this is considered news–with their Facebook friends. The breathtaking narcissism of such newsy updates aside, Facebook Beacon takes a giant step towards a future when we will all be defined by the commercial value of our online data trail. Facebook stated “[i]n keeping with Facebook’s philosophy of user control, Facebook Beacon provides advanced privacy controls so Facebook users can decide whether to distribute specific actions from participating sites with their friends.” However, those “advanced privacy controls” are less assuring than promised. Yesterday a student and I read through Facebook’s user agreement and privacy policies to see whether one could elect not to participate in Facebook Beacon, other than by not using Facebook. Users can elect not to distribute to friends news of specific transactions, but to date there is no one-stop mechanism to opt-out entirely.

Facebook Social Ads are another part of the story. They “leverage the power of Facebook News Feed by serving relevant stories about friends engaging with your business.” Here’s how Facebook pitches them to businesses:

Reach the right people.

Instead of creating an advertisement and hoping that it reaches the right customers, you can create a Facebook Social Ad and target it precisely to the audience you choose. The ads can also be shown to users whose friends have recently engaged with your Facebook Page or engaged with your website through Facebook Beacon. Social Ads are more likely to influence users when they appear next to a story about a friend’s interaction with your business.

The concept is brilliant–every Facebook user can, through association with purchases, downloads, ratings, and other digital flotsam, become his or her own brand. Facebook “friends” (which should always be in quotes in this context) could follow my data trail and decide “my father is sort of like Professor Randall, so maybe he’d like a pound of Malabar Gold Espresso, No Country for Old Men (the book, not the movie–he’s old school, remember), and Lindsay Mac’s Small Revolution for his birthday.” Or, back in the real world, cool hunters will track young fashionistas to decrease the lag between cutting edge and The Gap. Clickstream data, just laying around waiting to be turned into skeins of gold.

Brilliant. Except for the backlash.

Facebook: What Would Google Do?: There is something astoundingly tone deaf about how Facebook has handled its recent advertising initiatives. Mr. Zuckerberg is right: there are lots of people who would find it cool to tell the world what movies they just rented and even what color socks they just bought. But they’ve got to know that others would find this intrusive. And they couldn’t have picked a worse way to implement the Beacon system first: automatically telling your friends everything you did on participating sites unless you found and pushed a button to cancel the disclosure. (This timeline shows how hard it was at first to figure out what was going on.)

Are Facebook’s Social Ads Illegal?: There is at least one problem with this idea: It may be illegal under a 100-year-old New York privacy law. The statute says that “any person whose name, portrait, picture, or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained” can sue for damages. Moreover, such a use is also a criminal misdemeanor.

MoveOn Launches Privacy Campaign Against Facebook Social Ads: Calling Facebook’s new Social Ads strategy an invasion of privacy, MoveOn.org is asking Facebook members to sign a petition against the social network’s new ad plan.

Facebook’s “Fan-sumers:” Do Social Ads Violate Users’ Privacy?: [Law professor and privacy expert Daniel Solove] noted on his blog, “Facebook . . . assumes that if people rate products highly or write good things about a product then they consent to being used in an advertisement for it. Facebook doesn’t understand that privacy amounts to much more than keeping secrets — it involves controlling accessibility to personal data.”

Zuckerberg isn’t stupid, just surrounded by true believers who can’t view Facebook from outside the bubble. After ten thousand slaps upside the head Facebook has made Social Ads opt-in rather than opt-out. Under Pressure, Facebook Modifies Social Ads Program: “As of late Thursday, Facebook users must now proactively consent to alert friends whenever they take various actions, such as renting a DVD or purchasing a pair of sneakers . . . Now, as part of the changes enacted on Nov. 29, consumers who make such purchases will receive notices that Facebook intends to inform others about their actions—but only if they approve by clicking an “OK” button.” Problem handled, until the next wrong-footed product roll-out.

The Purpose of Law School II

Recently, articles about law school and the legal profession have captured my attention more than is customary. I’m not certain why. There are obvious reasons: I’m nearing the bottom of my pile of to-be-written LSAC recommendation letters, I’m talking often about law school, I’ve had retrospective discussions about law careers, and Damages recently concluded its initial season. Uncanny how that show captured the essence of my first year of practice in the municipal finance department. Murder, intrigue, double crosses, nights at the financial printer’s proofreading offering statements . . .

This time I’ll point to Legal Blog Watch, where Carolyn Elefant has done all of the heaving lifting in a post titled Law School Rankings to Students: Don’t Tell Me What You Want, What You Really, Really Want. The entire post and its linked materials (except the Spice Girls’ lyrics) are worthwhile to those interested in law school. Briefly, law students rank “quality of teaching, bar passage rate, placement rate at nine months, practical skills training and faculty-student relations” as most important in evaluating law schools. The U.S. News law-school rankings don’t “consider quality of teaching, practical skills training or faculty-student relations” and give less weight to bar passage rates and placements. U.S. News bases 25% of its rankings on reputation among law professors and deans, 15% on reputation among lawyers and judges, and other factors declining in significance.

Trying to put the U.S. News Rankings into perspective for prospective law students can be frustrating. The rankings promise to impose order on the difficult choice of selecting a law school but like many analytic tools, people wield them without understanding how to do so or try to make them do more than they can. There’s just something irresistible, atavistic even, about numbered lists. I recall a student deciding between two schools who was convinced that a school ranked 63rd by U.S. News would provide him with a materially better education and job prospects than one ranked in the mid-70s. That’s nonsense. Finish at the top of your class in either school and you’ll have excellent job prospects in their markets. Finish in the bottom half of your class and it won’t matter if your school is ranked in U.S. News’s top 20. Many wanna-be law students forget that half of them will finish in the bottom half of their class, at least until Lake Wobegon Law School opens its doors.

The disconnect between law students’ wants and the U.S. News ranking factors reflects the yin and yang of law school education. Does law school introduce students into analytic thinking that is the backbone of legal problem-solving or does it teach a trade? Which is more important for a law school graduate, sophisticated understanding of legal principles or knowing how to search a title? This should not be binary question; lawyers should know the how and the why of law. There are extremely smart attorneys who are flummoxed by law’s mundane, boring, and necessary details and law mill practitioners churning out form documents who can’t see the forest for the trees. Elefant agrees with a blogger who “wonders whether law student[s] are sufficiently qualified to evaluate the quality of a law school, or to know what aspects of legal education are important.” She says “the most important skills that law school teaches are (1) writing ability and (2) analytical thinking.”

I think the answer is more complicated. Recent posts have discussed the difficulties some law graduates have finding jobs that pay enough to cover their law-school loans. Many students enter law school without any clear understanding of what lawyers actually do only to discover that (1) they don’t like doing it, (2), they aren’t good at it, and/or (3) it is not at all what they expected. The practice of law is stratified, with the handful of top graduates (not all of whom graduated from the U.S. News top-ranked schools) landing the best paying jobs at corporate firms and everyone else finding their niche along the continuum from “interesting and challenging” to “mind-numbingly and soul-suckingly dull.” Learn to analyze, learn to write, but if you are in the bottom half of your class at a lower-ranked school and $150,000+ in debt, you had better come out of law school knowing how to do something besides spot issues.

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.

RIAA Wins Jury Verdict

The RIAA sued Jammie Thomas of Brainerd, Minnesota for copyright infringement for sharing 24 songs through Kazaa. Unlike every one of the 26,000 other people the RIAA has sued since 2003 who settled for an average of $4,000, Thomas chose to fight the charges . Last week she lost after a two day trial, the jury returning its verdict and ordering Thomas to pay $222,000 in damages after deliberating for less than five hours. The RIAA chose to focus its case on 24 of the more than 1,700 songs it claimed were shared in February 2005 by Kazaa user Terrastar. Thomas claimed that although she has used the name Terrastar on the Internet, she did not share the songs at issue. Her denial did not convince the jury in the face of testimony that linked Terrastar’s IP address “and other identifying information” to Thomas’s computer and modem. Thomas claimed a hacker spoofed her identifying data and “offered her hard drive for inspection” after being notified of the suit, but the jury apparently believed expert testimony that the drive she offered for inspection had been installed after she was warned of the potential suit. Jurors set damages at $9,250 per song, far below the $150,000 per incident maximum statutory damages–or $3.6 million–allowed by the Copyright Act. An award of court costs and the RIAA’s attorneys’ fees could push Thomas’s total liability to $500,000. Thomas said “I’m not going to ask for financial help [but] if it comes, I’m not going to turn it down, either.”

The judge followed the RIAA’s definition of infringing activity, instructing the jury that it could find Thomas liable if she made copyrighted songs available for copying, sparing the need to find that someone actually copied the songs shared by Terrastar. Some have criticized this definition of infringement, which finds support in copyright law. Yesterday Thomas announced that she will appeal the verdict and argue that the judge erred in delivering these instructions to the jury.

Since it began these lawsuits in 2003 “the number of people sharing files online at any given time has risen 69 percent to almost 9.4 million.” (Sources: Star-Tribune.com, Excite News, c|net News.com, The New York Times)

A Stupid and Sad Suit

All spring I avoided writing about the case of administrative law judge Roy L. Pearson, Jr. suing dry cleaners for $67.3 million over a pair of lost pants. I responded in the same way to the ten students (at least) who sent me articles about the lawsuit: it is a stupid case brought by a get-a-life plaintiff that only makes the legal system look bad. The trial, which started yesterday in Washington, D.C., is receiving national attention (Sphere reported as of ten minutes ago 390 blog posts on the case in the past 24 hours, plus a host of news articles) and its corrosive effect cannot be avoided. The trial is a spectacle, from the outlandish attention-grabbing damages calculated at $18,000/day for the four years the dry cleaner’s signs touted “Same Day Service” and “Satisfaction Guaranteed” to Pearson’s delusional self-portrayal “as a ‘private attorney general’ championing the rights of every Washington consumer” (an approach the trial judge flatly rejected) to Pearson’s histrionic tears, which required the trial judge to call a recess, while recounting the day he says the cleaners tried to pass off a cheaper pair of pants as his.”

It’s sad Pearson has no one in his life to make him see that flaunting his personal grudges and psychological imbalance on a national stage had made him an object of ridicule. His two-year term as an ALJ ended recently. Considering the lack of judicial temperment–which is putting it chariably–I’ll be astounded if the judicial panel reappoints him. It’s unfortunate that our legal system is providing the arena for Pearson’s national undressing.

Supreme Court Tosses Punitive Damage Award

The U.S. Supreme Court today rejected (see NY Times article) a $79.5 million punitive damage award against Philip Morris in a lawsuit brought by the widow of long-time smoker Jesse Williams. The 5-4 decision found there to be a taking of property without due process when punitive damages are calculated by determining the measure of harm to a single plaintiff and then multiplying that amount by the number of third parties similarly harmed. The Court declined the opportunity, sought by Philip Morris and other industry groups, to establish a cap to punitive damages. Justice Breyer wrote the opinion for the Court, joined by Chief Justice Roberts and Justices Alito, Kennedy, and Souter. Justices Stevens and Thomas filed solo dissenting opinions and Justice Ginsburg filed a dissent that was joined by Justices Scalia and Thomas. The case is Philip Morris USA v Williams.

Cartoon Consequences

The guerrilla marketing campaign for a Turner Broadcasting System cartoon show that prompted a Boston bomb scare this week has generated a lot of talk. So far the legal focus has centered on the two men hired by Interference, Inc., the advertising agency behind the campaign, to place the devices around the city. They’ve been charged with placing a hoax device (a felony) and disorderly conduct (a misdemeanor), both of which will be difficult for the state to prove according to an article in today’s Boston Globe. The same Globe article reports that Massachusetts Attorney General Martha Coakley is close to settling legal issues with TBS and Interference who, presumably, will pay their pounds of flesh and make formal mea culpas. Settling the matter quickly means there won’t be a full airing of possible legal claims in court which, while great blog fodder, would be in neither Turner’s nor the state’s interests.

A February 1 Globe article–the title of which captures its essence: Marketing gambit exposes a wide generation gap–stated “[t]he episode exposed a wide generational gulf between government officials who reacted as if the ads might be bombs and 20-somethings raised on hip ads for Snapple, Apple, and Google who instantly recognized the images for what they were: a viral marketing campaign.” Reactions to the campaign showed whether one belonged to the target demographic. A number of students said that the TBS campaign was wildly successful and therefore justifiable. They argued that TBS will likely earn far more in publicity than it paid to obtain, thanks precisely to the cluelessness of public safety officials. It was a great campaign, exceeding its aspirations. From more than a few students I heard “there’s no such thing as bad publicity.”

I did not and do not agree. Does the response justify the campaign? In every endeavor one always needs to ask: what could go wrong? How can my actions be misinterpreted? Failing to exercise due care to prevent the reasonably foreseeable injurious consequences of one’s acts is negligence. Whether one incurs legal damages, acting without regard to consequences is socially irresponsible. A positive cost-benefit analysis does not make it right.

Young people are so inured by the 12 billion ad messages they’ve received that marketers must whack them upside the head to get their attention. Some day, when Coke and Pepsi encode sales pitches on DNA molecules to insert in utero, today’s young folk can pine for that simple time of marketing devices taped to support girders on the Boston University Bridge.

Quiet Enjoyment

Last week a student asked me a question about Massachusetts landlord/tenant law. She lives in an apartment building in which the landlord is performing what she described as “heavy construction” in neighboring apartments, starting at 7:00 AM. She asked whether such disturbance gives her a right to reduced rent or any other remedy.

Under Massachusetts law residential tenants have the right to “quiet enjoyment” of their apartments, which is the right to live in and enjoy the premises free from disturbance and interference by the landlord or other residents. The right to quiet enjoyment is protected by Massachusetts General Laws c. 186 s. 14, which allows a tenant to sue the landlord for up to three months’ rent or actual damages, if higher, plus reasonable attorney’s in the event of the landlord’s breach of its covenant (promise) of quiet enjoyment.

Here are the the relevant provisions of Chapter 186 Section 14:

Any lessor or landlord of any building or part thereof occupied for dwelling purposes . . . who is required by law or by the express or implied terms of any contract or lease or tenancy at will to furnish water, hot water, heat, light, power, gas, elevator service, telephone service, janitor service or refrigeration service to any occupant of such building or part thereof, who willfully or intentionally fails to furnish such water, hot water, heat, light, power, gas, elevator service, telephone service, janitor service or refrigeration service at any time when the same is necessary to the proper or customary use of such building or part thereof, or any lessor or landlord who directly or indirectly interferes with the furnishing by another of such utilities or services, or who transfers the responsibility for payment for any utility services to the occupant without his knowledge or consent, or any lessor or landlord who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant, or who attempts to regain possession of such premises by force without benefit of judicial process, shall be punished by a fine of not less than twenty-five dollars nor more than three hundred dollars, or by imprisonment for not more than six months. Any person who commits any act in violation of this section shall also be liable for actual and consequential damages or three month’s rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee, all of which may be applied in setoff to or in recoupment against any claim for rent owed or owing. The superior and district courts shall have jurisdiction in equity to restrain violations of this section. . . . Any waiver of this provision in any lease or other rental agreement . . . shall be void and unenforceable. (Emphasis supplied)

The question is whether the construction this student experienced breached her covenant of quiet enjoyment. The landlord obviously has the right to maintain and improve its property, and a 7:00 AM construction start is standard. Massachusetts city and town ordinances typically prohibit construction or yard work from beginning before 7:00 AM, at which time they may proceed at full throttle. Those who live typical student hours may find 7:00 AM to be inexcusably early, but I don’t believe the law, the typical residential lease, or the typical judge would be sympathetic.

If the construction is performed in an unreasonable manner or lasts for an unreasonably long time then a tenant may have a valid claim for breach of the covenant of quiet enjoyment. A court would need to balance the landlord’s rights and duties to keep up the property against the tenant’s reasonable expectations.