Lawyerin'

James Madison 06/11/1788

ocorruption:

Who are the most corrupt members in Parliament? Are they not the inhabitants of small towns and districts? The supporters of liberty are from the great counties. Have we not seen that the representatives of the city of London, who are chosen by such thousands of voters, have continually studied and supported the liberties of the people, and opposed the corruption of the crown? We have seen continually that most of the members in the ministerial majority are drawn from small, circumscribed districts. We may therefore conclude, that our representatives, being chosen by such extensive districts, will be upright and independent. In proportion as we have security against corruption in representatives, we have security against corruption from every other quarter whatsoever.
Source:

Prof. Lessig has put together a database (on Tumblr) of every use of the word “corruption” by the Framers, and then referenced it in a SCOTUS amicus brief. Awesome.

“The critics of legal education are right. There are too many law schools and there are too many law students and we need to do something about that.”

Frank Wu, the chancellor and dean of the University of California Hastings College of the Law, “which will admit 20 percent fewer students than in years past, a decision that required the college to eliminate several staff positions.

More to come; this is the tip of a very large iceberg. If you’re considering law school, please e-mail me so I can personally talk you out of it. (NB - I love my job but I’m unreasonably fortunate!)

staff:

As we previewed a bit in the past week, we’ve been hard at work updating Tumblr’s policies, rewriting the three primary legal and policy documents that underlie your use of Tumblr: our Terms of Service, Privacy Policy, and Community Guidelines (formerly “Content Policy”).

We’re really proud of the new documents. We think they’re easier to understand and better for you and our community. In particular, we’ve clarified some of the content ownership language in our Terms of Service, dropped a few legal restrictions, and revamped our Community Guidelines to better reflect what we’re seeing and how we’re enforcing our policies.

It’s worth noting that, while the Community Guidelines have gotten longer, the only new policy in the draft that we weren’t already enforcing is “Promotion and Glorification of Self-Harm”. The other additions are meant to clarify our existing policies.

We’re planning to officially launch the new terms in the coming weeks. But in the meantime, we’d really love your feedback.

You can preview the new documents with the links above. And starting today, we’ll be making all policy revisions historically viewable (and diff-able) on GitHub!

If you have any questions or comments, please drop us a note.

This has been a big project of mine for a while now, but this was really a team effort in every possible way (I’d say about 20% of the company touched this one way or another). One extra special thank you to Prof. Eric Goldman, who (full disclosure: as a paid consultant) gave us invaluable feedback on the documents before we pushed them for all of your comments today.

“[T]he new iconic infrastructure of our age is the internet. Instead of division, it stands for connection. But even as networks spread to nations around the globe, virtual walls are cropping up in place of visible walls… . Some countries have erected electronic barriers that prevent their people from accessing portions of the world’s networks. They’ve expunged words, names, and phrases from search engine results. They have violated the privacy of citizens who engage in non-violent political speech… . With the spread of these restrictive practices, a new information curtain is descending across much of the world.”

Secretary of State Hillary Clinton. Law professors Mark Lemley, David S. Levine, and David G. Post note, however, in response:

It would be not just ironic, but tragic, were the United States to join the ranks of these repressive and restrictive regimes, erecting our own “virtual walls” to prevent people from accessing portions of the world’s networks. Passage of these bills will compromise our ability to defend the principle of the single global Internet—the Internet that looks the same to, and allows free and unfettered communication between, users located in Boston, Bucharest, and Buenos Aires, free of locally imposed censorship regimes. As such, it may represent the biggest threat to the Internet in its history.
“Given all the foregoing, it perhaps shouldn’t surprise us that the attitude of legal academia toward the supposed employment and salary data that law schools publish has been a systematic indifference to the continual broadcast of enormous quantities of complete bullshit, in the most precise technical sense of the term. The employment numbers are, to speak precisely, bullshit, in that nobody (or more exactly nobody in a position to do something about this) really knows the extent to which they’re false, because nobody in that position wants to know. The “96% employed with an average salary of $145,000″ claims aren’t lies, exactly, because in order to lie one must, somewhat paradoxically, care about the truth. Those claims aren’t lies: they’re bullshit, because the people who make those claims don’t know what the real numbers are and don’t care.”
“But even as the need and desire to enact some degree of Internet regulation has increased, we haven’t gotten much better at understanding what is actually happening online, which would be a cornerstone of intelligent regulation. This situation is compounded by “the extent to which policy-makers ignore the good data we do have,” in favor of a tendency to act out of fear and inspired by anecdotes. “A few million dollars’ worth of research infrastructure,” Palfrey and Zittrain suggest, “could help prevent billion-dollar policy mistakes.””
“An injunction requiring Google to “de-list” sites is one remedy which SOPA expressly makes available, and ordering the registry to transfer domain names to GoDaddy and ordering GoDaddy to update the DNS records is in effect achieving another remedy which SOPA creates. The fight against SOPA may be a red herring in some ways, since IP plaintiffs are fashioning very similar remedies in court irrespective of the legislation. Thus, even if SOPA is defeated, it may turn out to be a Pyrrhic victory—opponents may win the battle but may not have gained much as a result.”
“Today, I’m thankful for 47 USC 230. Whenever I think about it, I am still incredulous the law is on the books. Nowadays, Congress’ agenda is bulging with proposals from rent-seeking monopolists seeking to break the Internet with the hope of goosing their short-run profits. But 15 years ago, Congress shockingly found a way to foster a new multi-billion dollar UGC industry by restricting lawyers rather than empowering them. And the benefits of the UGC industry make my life better every single day. So thank you to Congress and the foresighted members who recognized that they could do some good with a strong immunity.”

The DMCA online safe harbors have worked pretty well over the past 13 years. I don’t know that anyone loves the compromise, but everyone seems to have done OK. We’ve seen an explosion of UGC websites fueled by the safe harbor, and content owners as an industry have done pretty well for themselves financially and have developed a working relationship with most major UGC sites.

The Stop Online Piracy Act, with its ridiculously named subpart the “E-PARASITE Act,” doesn’t expressly modify 17 USC 512. Nevertheless, it is a full-fledged assault on the safe harbor’s scheme. It employs the same basic notice-and-takedown structure of 512, but it applies the cutoff obligations to payment processors and ad networks (thus effectively reversing Perfect 10 v. ccBill and Perfect 10 v. Visa), expands—for the first time—the takedown obligations to trademarks (thus embracing and expanding Gucci v. Frontline), expands the takedown obligations to cover anti-circumvention in addition to the 17 USC 106 rights, expands the reasons why a rightsowner can complain, and does not give the governed intermediaries any business incentive to stand up for user content. On the latter point, because SOPA is designed to cut off the cash, each and every UGC item potentially jeopardizes its entire economic enterprise of a website hosting it. In other words, if the website goes offline because of cash flow problems caused by the cutoff attributable to a single UGC content item, all of the UGC on that website goes dark because of a single content item. Talk about collateral damage.

Thus, among other adverse consequences, if SOPA passed, it effectively repeals 17 USC 512 by shifting most of the action to the notice-and-takedown process in SOPA. In doing so, SOPA radically changes the balance between content owners and UGC websites. Despite the FUD from the content industry and other bill supporters about the supposedly serious problems caused by “rogue” websites and the supposedly fine-grained targeting of this bill, make no mistake—this law mortally threatens the entire UGC community.

It’s obvious why Viacom and its copyright lawyers want this change in the law: It would make their lives easier to pass the burden of enforcing their copyrights onto someone else. But innovators — and end users — wouldn’t be so lucky. It would be impossible for an Internet company to know when it had spent “enough” on copyright policing without taking its chances in court. And in the process of trying to satisfy this impossible burden, it would end up shutting down many of the transformative user-generated works like parodies that the law is designed to protect.

True, Google today can afford to do these things. But the YouTube of 2005 could never have afforded those kinds of costs. And neither could the Google of 1998, or the eBay of 1995, or the Facebook of 2004. If Viacom prevails, it will be a crushing blow for small startups — the YouTubes, Facebooks and Googles of tomorrow. The message will be that you can’t play in today’s Internet unless you’re a big fish. And that would be a disaster for innovation.

cheatsheet:

A lot of boomers have become insufferably smug and complacent.

Paul Campos explains why baby boomers are clueless about Occupy Wall Street.

Some nice quotes in this one, including: “Since I went to law school in the 1980s, the cost of legal education has quadrupled in real terms, thereby ensuring most current law students will graduate with six figures of debt from law school alone. Meanwhile legal employers are downsizing and outsourcing, to the point where the ratio between new lawyers and new jobs for lawyers is approximately two to one. And most of the new jobs don’t pay enough to allow even those who are lucky enough to get them to pay their educational debts.”

“Top-ranking Obama administration officials, including the U.S. copyright czar, played an active role in secret negotiations between Hollywood, the recording industry and ISPs to disrupt internet access for users suspected of violating copyright law, according to internal White House e-mails. The e-mails, obtained via the Freedom of Information Act, (.pdf) show the administration’s cozy relationship with Hollywood and the music industry’s lobbying arms and its early support for the copyright-violation crackdown system publicly announced in July.”

U.S. Copyright Czar Cozied Up to Content Industry, E-Mails Show | Threat Level | Wired.com

Rafer sez:
The problem is that she really was doing her job as it is defined by Obama and Congress. #occupycopyright

(via rafer)

Wikipedia's status in Italy 

Hence, anyone who feels offended by any content published on a blog, an online newspaper and, most likely, even on Wikipedia can directly request the removal of such contents and its permanent replacement with a “corrected” version, aimed to contradict and disprove the allegedly harmful contents, regardless of the truthfulness of the information deemed as offensive, and its sources.

The obligation to publish on our site the correction as is, provided by the named paragraph 29, without even the right to discuss and verify the claim, is an unacceptable restriction of the freedom and independence of Wikipedia, to the point of distorting the principles on which the Free Encyclopedia is based and this would bring to a paralysis of the “horizontal” method of access and editing, putting - in fact - an end to its existence as we have known until today.

With this announcement, we want to warn our readers against the risks arising from leaving to the arbitrary will of any party to enforce the alleged protection of its image and its reputation. Under such provisions, web users would be most probably led to cease dealing with certain topics or people, just to “avoid troubles”.

United States signs Anti-Counterfeiting Trade Agreement 

The deal, more than three years in the making and open for signing until May 2013, exports on participating nations an intellectual-property enforcement regime resembling the one in the United States.

Rashmi Rangnath, a staff attorney with Public Knowledge in Washington, DC, said the deal “clearly, is an attempt to foist US law on other countries.”

The accord, which the United States says does not require Congressional approval, also calls on participating nations to maintain extensive seizure and forfeiture laws when it comes to counterfeited goods that are trademarked or copyrighted. Most important, countries must carry out a legal system where victims of intellectual property theft may be awarded an undefined amount of monetary damages.

A US-backed footnote removed from the document more than a year ago provided for “the termination" of Internet accounts for repeat online infringers. US internet service providers and content providers, however, have brokered such a deal toward that goal.

Until European Union authorities began leaking the document’s text, the Obama administration was claiming the accord was a “national security" secret.