Before
A chronicle of an American life
Archive for The law
3 May 2012 at 8.38 pm · Filed under Funny stories, The law
Last night I went out to dinner with my mom, who was supposed to meet me for dinner at Continental. But she showed up at Phillips Seafood. These restaurants are right next to each other and they don’t have walls (they’re inside Caesar’s Atlantic City).
She had just ordered a margarita at Phillips. So she smuggled it out wrapped up in a copy of Bartlett v. Mutual Pharm. Co., Inc. (1st Cir. May 2, 2012). When we walked over to Continental, they caught her. But she decided to just set the drink on the floor. Periodically she would lean down and drink out of this glass on the floor. Eventually it was gone so they took it away.
Nobody has a crazy, wonderful, nuts mom like I do. I’m lucky (usually).
22 January 2011 at 10.03 pm · Filed under Culture, Law school, Random, The law
I’m watching The Pelican Brief (and I’m only 20 minutes in). Two things stand out. First of all, Cynthia Nixon played one of Julia Roberts’ law student friends, which is kind of hot. I guess she got her Sex and The City J.D. by having a part in this film.
Second, I loved — as I always do — the library scene where Julia Roberts rifles through countless dusty old law books, trying to figure out who might have killed the Supreme Court justices. You can feel the drama. Then I thought about it: in the digital age, there is no dramatic dusty old book scene. There’s just Julia Roberts, staring slackjawed at shitty old Westlaw. Hollywood is never going to put together any frantic iPad research sequence. (“Turn it to portrait orientation! Hurry!”) I hate the iPad and all it is doing to the death of print.
23 October 2007 at 1.12 pm · Filed under Technology, The law
Microsoft announced it would not appeal its adverse antitrust judgment in the Court of First Instance to the European Court of Justice, Europe’s highest court. I will leave it to those who actually know European law to comment on the merits of any possible appeal, but focus on the technology and on the press coverage of this significant ”event.”
In exchange for not fighting the case further, Microsoft agreed to open up certain software protocols at a lower cost than previously, and to license some patents at a lower cost.
The media went nuts with the coverage. Yesterday’s Marketplace radio show ruled: “It’s official — Microsoft is a monopolist.” (That was official long ago, and being a monopolist isn’t illegal.) The Times today allows that the effects remain uncertain but trumpets others’ pronouncements that the deal is “a huge breakthrough” and one that will have a “profound[ e]ffect” that will continue for years to come. Over at CNET, it’s an “important milestone” and “a large win” for everyone but Microsoft.
Amusingly, the most likely effect of this “deal” is to further tighten Microsoft’s grip over those areas where it is already strong: workgroup servers like file and print servers, and of course, the desktop environment — Windows Vista and Office.
It’s all about interoperability. But interoperability already exists. For example, you are probably reading this on a Windows PC or a Mac, or maybe a cell phone. But it is being served to you by a computer running Linux. You don’t know, and you don’t care, thanks to common Internet protocols not controlled by Microsoft. These protocols are free for anyone to use, so there’s no way to make money off monopolizing them. (Of course, people have complained for years that Microsoft has tried to add proprietary extensions to some of them as a way of coopting them. But this hasn’t worked.)
As part of this deal, Microsoft may publish additional undisclosed protocols, but I haven’t seen that in any press coverage yet. Right now, what they offer is mostly junk. The protocols Microsoft is currently licensing are available from other sources (UPnP), tragically outdated (IPX, Gopher), or worthless (the Echo protocol literally just echoes back whatever is sent). You can also license CIFS, which, as the Times article noted, is perhaps the most important one for interoperability in Microsoft’s core file server market. It was completely reverse-engineered by the open-source Samba team; no need to pay for it.
CIFS is an example of why Microsoft’s licensing deal is not the world-changer some might say it is. That protocol allows people using Windows PCs to store files on other computers’ hard drives — the common “file share” or “network drive.” In practical terms, what the Samba program does is let you get rid of a Windows server and replace it with a Linux server that has the same functionality. Samba makes it “look like” a Windows share drive to users. So users don’t notice that their files live on another type of computer, and just like you reading this web page right now, they don’t care. Nobody ever cares what protocol is used to store their files on another computer.
The core of my argument is: if Microsoft opens its protocol library a little more, and makes it cheaper to use those protocols, they are actually strengthening the importance of Windows. It becomes easier for people to build solutions around the Windows PC, and that only increases the value of being a Windows PC owner. A good analogy is the iPod world. There are thousands of products that fit the iPod, whether it’s special headphones, TV adapters, Bluetooth connectors, or whatever. My friend Tom Parker even has a whole bookbag with rubberized iPod controls on the strap and a headphone jack on the outside. All these “interoperable” accessories just make being an iPod owner more compelling — but they don’t really make it easier to, one day, finally get rid of that damn monopoly product, the iPod. By the way, I can’t resist pointing out that Apple has never published or been forced to publish the protocol for the iPod connector, and it changes all the time – much to the annoyance of Tom, whose $75 bag is now “broken” because it’s incompatible with the current iPod. If Microsoft did this — and when IBM did it in the 1960′s — competitors would cry foul and complain of the abuse of monopoly power.
Making new rules for Microsoft’s licensing agreements isn’t going to do anything for competition except increase the dominance of Windows and the other juggernaut, Office. It’s hard to see why Europe would accept this, but Europe has a history of securing worthless promises. The last one was “Windows N,” a version of Windows that didn’t include the Media Player application (and which Microsoft originally called “Windows Reduced Media Edition”). Making Windows N available was supposed to open the market for competing players like RealPlayer, even though you could already run RealPlayer on Windows. What happened? Europe’s regulators made no requirement to sell Windows N at a discount to regular Windows, so Microsoft sells it at the same price, and no rational user would purchase something if he can get more for the same money. Nobody buys Windows N, but Microsoft has to support it anyway. Meanwhile, RealPlayer still sucks.
26 April 2007 at 2.27 pm · Filed under Random, The law
This one is for Mr. McNeely.
Rick, did you know that our Sixth Circuit adjoins the Eighth, Seventh, Fifth, Eleventh, Fourth, and Third Circuits? That’s more neighbors than any other circuit! We really are the heart of it all.
10 April 2007 at 12.19 pm · Filed under Political, The law
I’ve thoroughly enjoyed riling up my friends on the left, Marcus Banks and Venezuelan Army Maj. Marty Stroodler, over the issue of D.C. voting rights. To Justme, I would retort that holding a sign reading “Will Make Political Commentary for Money,” and actually eating because of it, is a wonderful dream.
Washington, D.C., which the Supreme Court relegated to mere and literal footnote status last week, is clearly a banana republic that should be squelched until it learns its lesson.
Well, I’m kidding somewhat. In all this debate, I have been disappointed that no one took up for Washington as a normal American city. When I criticized the city for having no industry to speak of, I was sure I would hear “XM Radio!” (In truth, I just tried to think of another employer to include here that wasn’t 1) out on I-66 or I-270, 2) government, 3) quasi-government, 4) education, or 5) food, and I couldn’t do it. Sorry, Lady Columbia.) The city does have parks, rivers, boats, schools, etc. It deserves dignity as a regular place to grow up in, that just happens to have the capital. Tragically, its transient residential status caused the thousands of readers and commenters of our web logs collectively to bypass this aspect of Washington life.
“Retrocession,” or as I call it, “digestion by Maryland,” would degrade this unique character. I oppose it. Those who say it would free Washington of certain burdens, such as having to run a DMV, miss the point. This would strip Washington of its dignity as a special city. Further, it is impossible. The point of creating a “non-residential ‘federal quarter’” is to solve the voting problem by putting its population into a jurisdiction that has Congressional votes (Maryland) while leaving the part of the city that belongs to all America under federal control. The problem is that such a zone, at the minimum, would have to be a triangle containing the Jefferson Memorial, the White House, and the Supreme Court, and there are a lot of people living within that triangle. Either there would have to be forced evacuations for the purpose of creating a sterile zone, or those people would have to be left out of the plan to give voting rights to all citizens. Moreover, a sterile non-residential zone goes against principles of good city planning (Jacobs) and further debauches a grand old lady.
It seems unlikely that Washington will ever have the population to support two representatives. The city is atrophying and has lost about 40% of its population in the last fifty years; at the same time, the number of people supporting a single House seat grows ever higher. In 2010, the number of people needed for a State to claim two seats will exceed one million — five hundred thousand more than Washington has. Washington’s House delegation, if awarded proportionally to the other States, would never exceed one.
Senate representation is a great question. Logically, if the basis for granting a House seat is that people deserve an equal voice in Congress, then there is no reason not to grant a “full” two seats’ Senate representation. Otherwise, we’ll still have the “second-class status” argument hanging out there. (It was amusing to see Stroodler willing to bargain down to a single seat. Washington been down so long, it don’t know what up is.) But while the great constitutional compromise between the large and small States was to create two bodies, the House for the people and the Senate for the States, it does not justify granting Washington two Senate seats for the simple reason that Washington is not a State. (And we all agreed to leave at least part of Washington a “local government” rather than a State.)
I also find it interesting that in all this, nobody advanced the legal argument that the “District Clause” of the Constitution, art. I, cl. 17 (go here and search for “District”; also read interesting annotations), which provides that the Congress has broad powers to control affairs relating to the District, gives Congress the power to add a seat without a constitutional amendment. But I think this is a bad argument; it’s clear that the clause provides the power to control land use, building restrictions, police authority, and those kinds of things; it doesn’t let Congress restructure the Congress by changing its membership. I think it’s sad that some, including the Utahns colluding with the Democrats to add the seat, want to justify the change on this weak ground, rather than embarking on the lengthy moral crusade of amendment. By granting D.C. electoral votes, the American people have already demonstrated that if the cause is just, they will amend the Constitution even at the expense of their own interests. That is the surest route to solving this problem, whatever the solution may be.
27 January 2006 at 12.12 pm · Filed under Culture, Technology, The law
I couldn’t help writing a rejoinder to those defenders of Google Book Search and, of course, good old Banks. Because everyone should have the right to own their own content, however, I’ve posted it here on Before. Why should World get all the good material? For those who haven’t been following this storyline, start at Marcus’ original post on Google Book Search, then read my comment, followed by his “redux” second posting.
I’m glad we can open this debate because I think it is a very interesting issue lying at the intersection of the law, technology, and books, which are all topics Marcus and I enjoy. By way of flattery, I should note that Marcus Banks has always been my favorite published book author and I am aware he’s representing himself both as a writer and a reader. Now on to the discussion.
I’m still troubled by some of the arguments advanced in Google’s favor. However nice or wonderful it would be to have every book in the world instantly searchable on the Internet, we cannot ignore the steady policy and laws of all the world’s democratic governments just because somebody would like to have that index.
Marcus claims that because some of the books have “absolutely no commercial significance to the publishers” somehow immunizes Google from abridging the copyright of the publisher or author. Unfortunately, our laws don’t permit an infringer to make their own assessment of a work’s commercial significance and, if they find it to be zero, to use with impunity. Further, I think the fact that the books are scanned shows they do have some commercial significance to Google. And perhaps many of these titles have been out of print for years: as Google clearly plans to demonstrate, these old books have a value that can be unlocked by the technologies of scanning and indexing.
And, since each book does have indisputable value, why should Google be the one to profit from the unlocking of that value? They’re not the author who wrote the book. They’re not the publishers who took a chance and made an investment in the book. They’re not even the libraries who shelled out a few bucks to buy the book. They have no stake in the business of writing books at all. So why should they benefit to the exclusion of the authors and publishers who do? It’s argued that our copyright laws are out of date, so there should be some special exception for the Googles of the world. But inventing a new technology is not some magic wand or shield that, when produced, defeats all claims held by the original creator and owner of a work. The MP3 pirates learned that the hard way.
And I have to disagree that the appropriation of property with no monetary value can’t be “theft” or even just plain wrong. I myself have been a victim of copyright infringement, so I know what it’s like. I posted a rather ridiculous video of myself on my web site scaling down the face of an artificial climbing wall. Months later, I went to the City Center mall and found it was showing on a fifteen-foot-high screen in a continuous loop! This was part of a video advertising all the fun things that might be found in a great downtown (for the record, the rock-climbing happened at Easton). Did my video have any monetary value? No. Did the company that stole my work and aired it thousands of times in a very public forum derive a commercial benefit? Yes — else why do it. Did they have, at the very minimum, the courteous obligation to ask whether they could use it? I think the answer to that is clear.
Google argues it would be impractical for them to ask the author or publisher of each book for the rights to scan the book before including it in their permanent digital archive. Therefore, they’re just going to do them all, copyright be damned. A simple analogy to the physical world points up the absurdity in this logic. Google’s stance is like my saying I can drive my car across the backyard of every house in the neighborhood, because it would just take too long to get permission from each homeowner.
Our system of copyright could not be more liberal. In order to claim the copyright on an original work, all the author has to do is put the word “Copyright” and the year on it. Unlike with patents, there is no central registry that authors have to apply to for permission: we just want to encourage creative endeavors by giving them reassurance that they’ll earn the fruits of their labors without interference. No high-flying tech company should be permitted to swoop in and take that away.
25 January 2006 at 10.02 pm · Filed under Culture, The law
Marcus has written on the legality of the Google Print program, now renamed to Google Book Search. He cites a six-page Congressional Research Service report that looks at the issue from a lightweight legal perspective. Partly because of my membership in the Young Conservatives Union, partly because I enjoy taunting the techno-establishment whom I’m supposed to be digitally brainwashed by based on my age and occupation, and partly because I think I’m right, I’ve written a comment digesting the issue and generally opposing the project. If you’re interested, read all three writings and comment over at Marcus’ World (or here).
7 June 2005 at 9.50 pm · Filed under Connextions Lofts, Culture, Random, Solely personal, Technology, The law
Hello, dear reader!
It has been many weeks since the last Before. I am pleased to bring you more thrilling news and insights from me! This entry discusses a minor victory of mine as well as several other random news items.
Tonight, I was elected to the board of the erratically-named ConneXtions Lofts, and, have also been elected to the post of Treasurer! (It’s not as glorious as it sounds; nobody wanted Treasurer, and I made the twin mistakes of 1) being the impressionable new guy and 2) having the last name Cash.)
Now when I am in the elevator and it unexpectedly stops on the third or second floors, I will have the pleasure and power of barking, “Out! Out! I’m an executive officer of the Board!” (Note to fellow neighbors: It is my honor to serve you as a member of your Board for the next three years. I am looking forward to dedicating myself to the betterment of our community for everyone’s benefit. Now stop taking the elevators if you live on 3 or 2.)
No, seriously, if any of my neighbors do read this, thank you very much for choosing me and I do hope to work with all of you to make it a better place. Send me an e-mail or call me any time.
At least tonight didn’t go like the last election I was in, eleven years ago, which was for President of the Class of 1995. I stupidly ran a short but extremely negative campaign, consisting of a single speech bashing the current class president. I don’t even remember what I said (actually this is a lie), but it was pretty embarrassing and I think I lost 440-10. Also, he later refused to go to the prom with me. Eddie Harris, if you are out there, that day will be with me for the rest of my life.
I have just discovered the Urban Dictionary. I think I am a couple years behind the times on this, but at least I now know what holla back girl actually means. This is the resource I was looking for to stay “fresh” and “hip” as the popular culture evolves during the next decade. I won’t be able to enjoy it.
I visited the Contemporary Arts Center in Cincinnati a couple weeks ago. This was the building the New York Times called something like, “perhaps the most important building since the end of the Cold War.” Well… ehhh. It was just OK. It was done by Iraqi architect Zaha Hadid, who is most famous to me for her stage design of the Pet Shop Boys’ Nightlife tour. The building is vertically-oriented, and the floors are connected by shallow, suspended stairways. Unfortunately, the stairways seemed really cheap. Arnie and I panned the exhibits and I think we would have to say the best part was the gigantic elevator, the biggest one I have ever seen. Still, if you’re in Cincinnati and you have an hour and eight bucks, you might want to do it.
19 March 2005 at 2.44 pm · Filed under The law
When the defendant, Clifford Witter, a dance instructor, waltzed out of the employment of the plaintiff, the Arthur Murry Dance Studios of Cleveland, Inc., into the employment of the Fred Astaire Dancing Studios, the plaintiff waltzed Witter into court. For brevity, the two studios are called ‘Arthur Murray’ and ‘Fred Astaire’. At the time Witter took his contentious step, Arthur Murray had a string attached to him — a certain contract prohibiting Witter, after working for Arthur Murray no more, from working for a competitor. That Arthur Murray and Fred Astaire are rivals in dispensing Terpsichorean erudition is not disputed. Now Arthur Murray wants the court to pull that string and yank Witter out of Fred Astaire’s pedagogical pavilion.
No layman could realize the legal complication involved in Witter’s uncomplicated act. This is not one of those questions on which the legal researcher cannot find enough to quench his thirst. To the contrary there is so much authority it drowns him. It is a sea — vast and vacillating, overlapping and bewildering. One can fish out of it any kind of strange support for anything, if he lives so long. This deep and unsettled sea pertaining to an employee’s covenant not to compete with his employer after termination of employment is really Seven Seas; and now that the court has sailed them, perhaps it should record those seas so that the next weary traveler may be saved the terrifying time it takes just to find them.
Arthur Murray Dance Studios of Cleveland v. Witter, 105 N.E.2d 685, 687 (Ohio Com.Pl.1952).
17 March 2005 at 9.40 pm · Filed under Political, The law
The pain from the recent spate of court-related killings won’t be able to heal until some gun nut informs the country that if everyone could carry a firearm inside a courthouse, we wouldn’t have as many crazed defendants grabbing guns and shooting judges. I do hope this brave truth-teller speaks out soon, because it is high time for there to be more loaded weapons around criminals. After all, if guns were illegal, then only criminals would be able to shoot innocent court reporters in cold blood.
21 February 2005 at 11.34 pm · Filed under Random, Solely personal, The law
I recently found an Illinois case where an impaired hand was worth $800,000 and a Louisiana case where an amputated foot was worth only $80,000. I believe that Louisiana in general is much stingier than Illinois. Maybe people over there are used to heartache.
I am still learning to romance my crock pot. Tonight I had a recipe actually tell me, “Place whole chicken on top of vegetables.” This is very disconcerting. I had no idea how big a whole chicken would be. I have a lot to learn.
9 February 2005 at 8.55 pm · Filed under Random, The law
When I go to the law library, I like to sit under the shelf that holds the 1987 Yearbook on Socialist Legal Systems. Somehow it is comforting.
