eReaders, Part 2

In longstanding tradition of attempting to write an academic, researched article… I’ve been preempted. As if I needed another reason to love the Electronic Frontier Foundation  … they have just published:

2010: E-Book Buyer’s Guide to E-Book Privacy

Deeplink by Cindy Cohn  

This is what they investigated:

* Can they keep track of book searches, either on their website or on the website of other e-book sources?

* Can they monitor what you’re reading and how you’re reading it after purchase and link that information back to you? Can they do that when the e-book is obtained elsewhere?

* Is the device ONLY compatible with books purchased from an associated eBook store?

* Can they keep track of book purchases? Can they track book purchases or acquisitions made from other sources?

* With whom can they share the information collected in non-aggregated form?

* Can they share information outside the company without the customer’s consent?

* Do they lack mechanisms for customers to access, correct, or delete the information?

And here’s what I was gathering, outside of that info…

Which mostly include articles surrounding the IP of the eReaders.

Nook (Barns And Noble)

Yet Another Reminder That You Don’t Own Your Ebooks: B&N Nook Deletes Files, Blames User

Techdirt

Just as Barnes and Noble is updating the Nook, its ebook reader that hasn’t gotten much traction, comes reports that of an upset customer who found that the Nook deleted all of his files, and when he complained to B&N, the company basically told him it was his fault and there was nothing it could do. While B&N was able to restore the ebooks, it could not restore anything else, not from B&N, such as his own documents and notes: I tried to turn my Nook on this morning and it wouldn’t turn on. Finally, it gave me a screen that said it was updating and that I needed to leave it be, so I did. When it had finished updating it had wiped all of the files off of my nook. When I reregister the device, the books from B&N will return, but everything, including documents not from B&N, has been deleted.

When I called technical support (1-800-THE-BOOK) to complain/make sure they were aware of the problem so that it wouldn’t happen to other people, I was informed that this can happen when the device hasn’t been updated in awhile. I asked if this was something they were trying to fix and I was blamed for the fact that everything had been wiped from my device because I had not been studiously updating the device. I asked if he understood how absurdly incompetent this was, my computer, after all, does not delete all my files because I don’t update it for awhile. I was informed that my computer updates everyday, whereas I have apparently not updated my nook in a terribly long unspecified length of time, which was just too long and too many updates for it to handle without deleting all my files.

Amazon got in a lot of hot water years ago for deleting copies of an ebook. You would think Barnes & Noble would know better than to do the same.

Kobo (Borders) $149.99

This, from Kobo’s website…

? – How do I buy books for my Kobo eReader?

Simply click on the Store button in the Borders eBook Desktop App to search or browse our extensive catalog of titles. Once you have purchased your books, ensure your library is up to date by clicking “Update Library.” All your purchased books should appear in your library. Ready to transfer to your eReader? Connect your eReader to your computer and click “Sync.” When the syncing process is complete, eject and unplug your eReader and your books will be waiting for you on the device. You can also use the Desktop App to load eBooks purchased from other vendors, provided that they support Reader® Mobile Technology from Adobe Systems Inc.

? – Can I read the ebooks in my Kobo eReader library on other devices?

Absolutely. The Kobo reading service allows you to read your eBooks across multiple platforms, including your Kobo eReader, select smartphones, and your computer, using the free Borders Apps available for those platforms. You can also download the ePub versions of your purchased books and load them on to any eReader that supports Reader® Mobile Technology from Adobe Systems Inc.

? – How do I load documents to my Kobo eReader?

You can add your own PDF documents to your Kobo eReader by connecting your eReader to your PC or laptop using the supplied USB cable. The eReader will become available as a removable storage device. Drag-and-drop your PDF files onto the eReader. If you have an external SD card (up to 4 GB), you can load PDFs on that, insert it into your eReader and your eReader will automatically detect new content.

? – Can I share the eBooks in my library?

The license type determines whether or not you can share eBooks. Many eBook products sold have a “Single Reader” license. This means only you (and your immediate family) may view the eBook.

[And additionally…]  eBooks supporting Reader® Mobile Technology from Adobe Systems can be shared with up to 6 devices authorized to the same account. For more information regarding Adobe Reader® technology, please visit: http://www.adobe.com/products/digitaleditions/faq/#section-2. This Kobo eReader contains Reader® Mobile software under license from Adobe Systems Incorporated, Copyright © 1995-2010 Adobe Systems Incorporated. All rights reserved. Adobe and Reader are trademarks of Adobe Systems Incorporated.

Account Requirement: You’ll need a Borders.com account to purchase and sync eBooks with your eReader.

Kindle (Amazon)

Kindle To Let You Lend Books, Just Like A Real Book… Except Not

from Techdirt by Mike Masnick

Apparently, Amazon is adding a feature to the Kindle that will let you “lend” books to other Kindle users. Of course, it sounds quite like the ridiculously limited lending found on the Barnes & Noble Nook ebook reader as well. You see, when you “lend” the book, you can’t read it yourself… “just like a real book.” But, um, you can only lend it to other Kindle users, just like a real book (oh, no actually). And, you can only lend it for 14 days, just like a real book (oh, no actually). And… you can only lend it out once, just like a real book (oh, no actually). It really makes me wonder how incredibly soul-deadening it must be to be a developer working on products like this where you’re focused on limiting what the technology allows.

Irony: Book About Recording Industry’s Mishandling Of Digital Priced Higher As Ebook Than Physical Book

from Techdirt by Mike Masnick

A few weeks back, we noted that book publishers apparently simply did not learn from the mistakes of the recording industry — specifically pointing to DRM and (more importantly) the fact that they’ve started pricing ebooks higher than physical books. Now, in a moment of supreme irony, Copycense (who has been highlighting various ebooks priced over corresponding physical books) is noting that Steve Knopper’s excellent book Appetite for Self-Destruction (subtitled “The Spectacular Crash of the Record Industry in the Digital Age”) is one of those books. Indeed, Amazon shows the ebook priced at $17.99, while the paperback is $11.53 from Amazon (and available new from others at $7.50 or used at $4.42).

If you go to the ebook page itself, Amazon clearly states, “This price was set by the publisher” (a clear response to complaints about the rapidly rising price of ebooks lately). It kinda makes you wonder if the decision makers at Simon and Schuster even read the book they’re pricing? They might want to crack open a used copy of the paperback (it’s cheaper) to learn why not understanding digital, and therefore thinking you can price digital things super high, is not the smartest move…

Enjoy!

Pax,

aTtorney, Esq.

 

(c) Nicole L. M. Jurkowski 2010

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eReaders, Part 1

Readers are huge this season, and arguably a very progressive way to go about having an extensive collection of books. They’re also a cool digital toy that is apparently on the hot list for kids 6-12. (I’m not kidding! ) But when everyone is comparing the specs for the devises… I’m more interested in how the readers interact with the Copyright law.

Now where books are concerned – some people, like myself, highly enjoy the physical experience of owning books – the smell, the touch, and the library one collects over a life time. However, others put more value in the ability to access to a large number of potential reading material at any point in time, and/or to not have an enormous library of physical books. (In effect: to do to books what the walkman, CD player and the MP3 player have done for music.) And we all know how important value  is when attempting to get someone to purchase merchandise.

So with that in mind, I am interested in investigating how the top eReader companies are addressing this need – especially where the licensing and use is concerned for consumers. I’ve heard plenty of rumors about various eReader users loosing entire libraries of content for X reason, and Y company being unable to help them recover the data or say that it’s their fault for not backing up the device, etc. I’ve also heard (substantiated) rumors that the Kindle has a “book sharing” system, where you can lend books to other Kindles – which means that there is value in possessing a pseudo-physical piece of property.

All of these concerns, in my opinion, come from the reality that eReader users put both physical and non-physical value in the same devise. Consumers want:
(1) the value of an electronic library which can be electronically stored, backed up, and recovered should something happen to the physical device, and

(2) the value of a physical device which can trade the non-physical, licensed books like they are real property. (Talk about a double edged sword!)

As I see it, the first situation (1) should be dealt with by the company providing the device in the form of customer support. If you have a proprietary eReader, where by you can only download books from that point source, you arguably have an account with that point source that has a record of your purchases. If you loose the file, for whatever reason (other than some how permanently giving the file to another user (another physical/non-physical paradox)), you should arguably be able to download new copies of the books you have already purchased because they will have a record of that sale. If you have an open eReader, where you can put any book from any point source on your device, then it would lend itself to a more traditional situation – you have to back up the files so that you don’t loose them. This second option is more like a traditional, physical book purchase; if you loose your physical book, then it’s gone.

The second situation (2) is something more of a problem because it starts to play foul with what we lawyers know as the First Sale Doctrine  – and the rest of the world knows as the secondary market of used books. The First Sale Doctrine means that you cannot be sued by a publisher for selling a book you bought at Borders from them to a friend. The reality with eReaders is that they are “licensing” copies and to you, which means they are selling you the right to own a copy. It is very similar to a software license with it’s End User License Agreement  that restricts you from re-selling software that you have previously used. (Plenty of current legal cases to go with that thought – but unless I turn this into a legal article to be published academically, y’all won’t care so much.)

The eReader’s problem is that they are both treating eBooks as being licensed (they can only be used on proprietary eReaders (the license is only for the Nook, say) or  they are treating the eBook as having some hint of real property by allowing you to “lend” it to other users. Now granted, the companies licensing these books could very well be including the ability to “lend” in the license, but we all know that if you give a mouse a cookie, they’re going to want a glass of milk. It is very easy to imagine consumers demanding a secondary digital market for books – which despite being extremely hard to pull off in my opinion, could theoretically be viable. But that’s slightly beyond the point of this post.

What I’m actually looking into with the eReaders is what they are licensing (digital rights in books, either exclusively or non-exclusively) and how they are attempting to control what is on the reader (proprietary DRM or other controls). There’s also the fact that all throughout this intro I haven’t mentioned that the readers are still a middle man – the digital rights to the books are licensed to the store, either exclusively or not, and if the store provides the reader, then the store can still claim some modicum of control over the digital rights to the book (you can’t reproduce it or sell it to others, etc.). It’s a whole chain of “I sell X Store the digital rights and the ability to license those rights to Y consumer. X Store can then limit Y consumer from using the book on Z reader through DRM (digital rights management)” –  in a worst case scenario. In a better picture – “X store get the digital rights and sells it to Y consumer in a format that be read on all readers”.

Wow – even my head is spinning, now.

So in an effort to provide some sort of guidance to people buying eReaders this gift-giving season…
I am investigating the legal aspect of the three big readers: Nook (Barns and Noble), Kobo (Borders), and Kindle (Amazon). I’m also going to look into Apple’s iBook appication for the iPad – but that seems to be a slightly different market, as I doubt someone would by a $500 eReader. (They would by a $500 mini-computer with an eReader application, though – so I’ll check). And yes, I know there are many other eReaders out there, but for the purpose of this thought experiment I want to focus on the groups that already sell a majority of the hard copy books in the mass market.

So here’s what I’m looking for:

* What is in the license for the copyright of the books purchased? (Digital Rights)

* Storage and the ability retrieve “lost” books (Digital Copy Value, Customer Support)

* The Ability to trade books with other users. (Hard Copy Value, Secondary Accessibility)

* The Ability to buy and read eBooks from multiple sources. (Non-Proprietary market)

* The effect of DRM on eBooks (Proprietary mark)

* … and anything else that comes up that I didn’t expect.
And I’ll get back to y’all soon with what I find… This is going to take some digging through fine-print

Pax,
aTtorney, Esq.

 

(c) Nicole L. M. Jurkowski 2010

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Recipe for Hate

I am absolutely steamed over this recent debacle with Cooks Source being outed for rampant copyright infringement . The pure audacity of someone assuming anything posted on the internet is “public domain” and it up for grabs is one thing, and I will not deny that artistic and intellectual creativity benefits from the availability of content on the internet. However, flagrantly building a business model on top of the backs of people’s work is another.

The newest update I read was from TechDirt, and can be found here:http://www.techdirt.comom/articles/20101117/03315211909/cooks-source-apology-really-a-rant-blaming-the-woman-it-copied-for-daring-to-tell-people.shtml

One of the comments to this article piqued my interested, though:

Meh.

ChurchHatesTucker (profile), Nov 17th, 2010 @ 12:13pm

This is problem of the law, I think. Judith heard (correctly) that recipes aren’t covered by copyright. I’m guessing she thought she was in the clear for reposting recipe.

Now, there’s a point where ‘recipe’ ends and ‘narrative expansion’ begins. Judith obviously crossed that, and violated copyright laws in doing so.

And if you bore down to what was “taken” and what benefit anyone received, Monica seems to have done rather well.

Color me jaded.

The poster got a bit of guff from the comment, which makes me want to explain what’s really going on. They do have a good substantial point – recipes aren’t covered by copyright.

However!

I am not the only person talking about this issue, obviously. Here’s one of the better retellings I’ve come across on the internet. We’ll call this the “Fact Pattern “.

Editor of a for-profit magazine published a non-licensed recipe, with attribution.

ISSUES:

“Recipes cannot be copyrighted.”

“Editor should have been paid for the work done editing to the recipe before publication.”

“Anything posted on the internet is public domain.”

This is the breakdown:

1. Copyright for Recipes

The key problem for this whole issue lies in the ability to “copyright a recipe”. What I haven’t seen many people talking about is that there are two distinct parts of a recipe: the ingredients and the instructions.

Ingredients : For the same reasons that you can’t claim a copyright in facts, you cannot claim a copyright to the ingredients included in a recipe; if one person could sue the pants off of everyone else who wanted to use “apples, filling, and pie crust” – they would have hugely unfair monopoly.

Instructions: This is where the shades of grey for copyright begin. For the basic idea, the level of protection corresponds to the originality of the work, which range from free expressions (think, a highly creative field like fantasy writing) to ideas and concepts (how-to books, blogging) and then pure facts (like historical baseball scores). The closer you are to expressions, the easier it is to claim a copyright in everything included. Conversely, the more facts you have, the more creativity you are required to put around those facts in order to claim a copyright in the parts of the work that are not those facts.

However, there are only so many things that you can do with facts: arrange them and/or explain them. So if you want to claim a copyright on a “recipe”, then you are, in fact, claiming a copyright on the explanation of how to prepare and cook that recipe. “Apples, filling, and pie crust” are not included – but a discussion of the types of apples that are available during the thanksgiving season and which will bake better or give you a different flavor would be copyrightable. Not the information, but the words you put together in order to explain that.

So in our fact pattern, the original author is able to have a copyright, and the ability to license that copyright, off of her work for an apple pie recipe.

2. Editorial work

Given the previous explanation, it should make a bit more sense now why the Editor has an argument for being able to utilize the works involved. They took a list of ingredients (not copyrightable) and the instructions provided by the author (copyrightable) and then put them through what they claimed to be an extensive editorial process. This process, arguably, could have moved beyond a “derivative work” (which would be under the original author’s copyright protections) to an “original work of authorship” (given the extent of the corrections) based purely on the facts presented by the original article.

As it turns out, the actual article that the author, Monica Gaudio, wrote is hosted on Gode Cookery.com , and is described as “Redactions of two English apple pie recipes and a discussion of how they changed over time”. As a copyright attorney and artist, I would consider this an academic piece as well as a recipe – so more towards an expression than a how-to, or “highly creative”.

Now, for the life of me, I cannot find the article published by CooksSource after they got their hands on it to make a comparison of what they did to the article. This is a good thing, I suppose, considering it was in fact copyright infringement. If anyone can find it, please let me know!

(In the best situation for CooksSource, they could have done a completely academic critique of the author’s piece, arguing for a different conclusion with reference to the author’s own researched facts. If that was the case, then I highly doubt that there would have been as big an issue as there was.)

The critique, then, lies in the idea that any amount of “editorial work” they did to the piece. If they did not do what I just described above, which is highly unlikely, then an attempt to use the self-same piece with some grammatical or syntactical corrections, or maybe even some strategic paragraph rearrangement, would still be a far cry from being able to claim that the particular piece by Ms. Gaudio was in any way a legitimate use of the non-copyrightable material involved. In fact, it appears that it was a blatant taking of her piece with attribution, but no payment or licensing from the author.

3. Copyright and Public Domain

Again, with all of that said – it should be clear that the piece Ms. Gaudio wrote was covered by copyright. Not only that, but the copyright invested when she wrote the piece. It was also, arguably, licensed to be hosted on the Goudecook.com site that it was lifted from.

So what would have given the Cooks Source editor any impression that what she was doing was legitimate? While her claim is wrought with “everyone does it” (read: it’s easy to do) and “you should be glad we didn’t just rip you off” (read: they did provide attribution), the claim that the work was in the public domain is just downright fraudulent.

Brief history lesson: Public Domain refers to two things:

* works not covered by any Intellectual Property rights (ex: facts), and

* (2) works whose IP rights have expired.

By expired, I mean that as the American copyright law is concerned, it is so old that it has become part of our culture and therefore, no one can claim any monopolistic rights on copies of that work (aka: a copyright).

There is a long list of legal changes for when a copyright would or would not expire. Here’s a little breakdown:

The Transition from 1909 to 1976 Copyright Act and its Amendments

pre ’23         Not registered                                 Public Domain

’23-’63         Date of Publication (w/ notice)  28 years (if renewal, no public domain (67))  (95, 2018-58)

’64-’77         Date of Publication            28 (auto renewal (68))                                         (95, 2060-73)

pre ’78         Not published (1/1/’78)  Life + 70

1978            “Fixed in a tangible form”              Life +70

Safe to say – it’s convoluted. At first, if one did not register that copyright, then the work did not receive copyright protection. Later, the copyright renewed automatically. Now, the copyright invests automatically and that lasts 70 years after the authors death. (However, if you’re working with a work before created and published before ’78… it can be in the public domain, given their circumstances. For our fact pattern, though, we don’t have to worry about it.)

So could the Cooks Source Editor have thought that Public Domain meant in order to come to her conclusion?

Likely she believed that “public domain” meant “publicly available”, but if that was true, then everything in the Public Library would be in “public domain” – which is certainly not the case. Taking some guidance from her own words regarding, one could assume that she understood that there was copyright protection covering the material, but that the author forfeited the copy protection by publishing her piece online. (Making it available to be stolen makes the piece legally steal-able? I think not!)

The moral of the story…

What one can say, though, is that this kind of activity IS taking place. She got caught, but many others have not. So if you have works that you want protected that you have not registered the copyright in, yet – keep them off the internet. If someone takes it and registers it before you do, your chances of proving that you wrote it first involve a long up-hill battle.

If you have a piece that is registered that you are willing to publish online, though, here are a few tips:

Put a copyright notice on the piece: “(c) 2010” – Though it is not required by law, it does show your intent to claim a copyright should the issue come up – which may deter this kind of thieving in the first place.

Put a disclaimer on the piece: “this work is registered and the author will send an angry internet-mob after you if you take this piece without my permission” – That certainly shows your willingness to sue, should they be discovered.

Keep it off the internet. While this is not my typical pro-internet marketing, if you have something of value, then there is some value to stealing it. It’s your call, but I hope you make an educated decision about the risks involved.

Oh, and fwiw – The last bit is especially true if you’re writing a novel. Most hard copy publishers want the “Right of First Publicity” with a work, which means that the piece has not been published (aka: made available for public consumption). Posting a few chapters or the whole piece on the internet does count as publishing, even if it feels informal, and may damage your ability to license or sell the piece with exclusivity.

So… that’s my take on the situation. Hopefully I’ve provided some further insight into the conundrum and why this Editor may have thought she had some hazy right to do what she was doing at all.

That’s it for now.

Pax,

Miss Nomer, Esq.

As an additional note – there is something to be said about wishing to publish online, but have “some rights reserved”. Creative Commons  is a fabulous non-profit working with content creators to span the gap between copyright and pubic domain or open source by providing a spectrum of copyright licenses. From their website…

* Some Rights Reserved

* Creative Commons defines the spectrum of possibilities between full copyright and the public domain. From all rights reserved to no rights reserved. Our licenses help you keep your copyright while allowing certain uses  of your work ― a “some rights reserved” copyright.

Check them out and educate yourself about the options available to you, if you’re going to pursue internet publishing. It could save you a bundle!

 

(c) Nicole L. M. Jurkowski 2010

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[Latin] Quid Pro Quo

QUID PRO QUO

Academic Latin Pronunciation: Quid Pro Quo

Legal Latin Pronunciation: Quid Pro Quo

 

The New College Latin and English Dictionary says….

* Quidam, quaedem, quiddam; pronoun a certain one, a certain person, or a certain thing

* Pro; adj “esse pro” (+ Ablative) to be as good as, be the equivalent of

* Quo; that, in order that (Ablative form of Quid)

 

Phrases

* Pro eo quod: in view of the fact that

 

Ergo…

 

Quid Pro Quo: “Something specific for a comparable something else specific”

 

Quid Grammar: Indefinite Pronoun, is more definite that aliquis (“someone”, “somebody”, “some”),

 

Pro Grammar: Preposition, governing the ablative. (The ablative is the objective case for a nouns in Latin. The ablative comes in three flavors: the “from”-case (Ablative), “with”-case (Instrumental), or “where”-case (Locative) ).

 

Quo Grammar: “Quo” is the ablative case of the noun quid, used when the purpose contains a comparative or a comparative idea.

 

Combined, the phrase turns into Quid (“a specific something”) Pro (“for” + ablative) Quo (“a specific something” – ablative case, denoting equivalency), or as it’s easier to read: “something for something comparable”.

 

So that’s what the grammar means, but what’s the significance? It’s probably one of the more common uses of latin for business and law… but do they still match up to what the latin signifies?

 

From the Century Dictionary–noun

1. Something given for something else; a tit for tat; in law, an equivalent; a thing given or offered in exchange for or in consideration of another; the mutual consideration and performance of either party as toward the other in a contract.

 

Wordsmith WordsUsage

“As is now known, `back-channel’ negotiations achieved a quid pro quo. In return for Russian offensive missiles not being placed in Cuba, President Kennedy would remove Jupiter missiles from Turkey and promise not to topple Fidel Castro’s communist regime militarily.” ― Ronald H Carpenter, When the Right Words Counted, Naval History (Annapolis, Maryland), Oct 2001.

 

Black’s Law Dictionary, Deluxe Eighth Edition (p.1282)

[Latin “something for something”] An action or thing that is exchanged for another action r think of more or less eqal value; a substitute . See Reciprocity (2). Cf. Consideration. [Cases: Contracts *50. C.J.S. Contracts 87.]

 

So unlike the rest of my posts… Yes! The latin has actually managed to keep the same meaning. For me, the nuance lies in the fact that there are a very impressive number of types of ablatives, but that doesn’t matter for the one phrase. Perhaps the more impressive part of all of the research for this particular phrase is the fact that I’m now stuck in Black’s Law Dictionary in the “Q” section realizing how many phrases I could potentially do this type of Blog post for. It’s rather daunting…

 

Fortunately for y’all, I’ll just leave it to the ones I actually ran across in school and practice!

 

Pax,

Vestra Magistra, Esq.

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Public Domain, Damages, and Hardcore Activism

So in the grand tradition of a few of the law blogs I follow, I’m going to start posting some of the articles that I find that I think may be of interest to folks that follow the blog. In addition to conversations with friends and other random encounters, these types of articles are where I get my inspiration from for posts.

Magazine Steals Website Article, Tells Protesting Author She Needs Lesson in Public Domain
Rule 1 about Copyright law – it invests when a piece is written, not when it is registered.
Rule 2 – A Copyright notice/symbol has not been required since the US joined the Berne Convention, effective March 1, 1989.
Rule 3 – If you take someone’s article off of the internet and repost it with attribution, most people don’t get upset. However, if you build a business republishing others articles without their consent, and The Internet finds out… You’re screwed.

In 3rd Music-Download Trial Replay, Minn. Woman Is Hit with $1.5M Verdict; $62,500 Per Song
Subject: 24 illegal downloaded, copyrighted songs
Trial 1: $222,000
Trial 2: $1.92 million (later reduced to latter verdict was reduced by a federal judge in Minnesota to $54,000)
Trial 3: $1.5 million (average of $62,500/song)

Summary: Violations for copyright infringement are both incredibly vague and insanely over-valued. The third trial was for “damages” from having the copyright infringed.

(I could really do a nice big entry on all of these types of cases…)

And not to be outdone… Porn Industry Lawyer Is New Copyright King With 16,700 Lawsuits Filed

That’s right – The Adult Copyright Company offers “hardcore protection for hardcore content,” according to the website , and they have just set the record for the most copyright infringement lawsuits filed in the shortest amount of time. The second runner up now is a “team” of lawyers that purport to help indie film makers by suing unnamed file sharers by figuring out IP addresses. Here’s their 15 minutes of fame link .

 

(c) Nicole L. M. Jurkowski 2010

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[Latin] Res Ipsa Loquitor

RES IPSA LOQUITUR

Academic Latin Pronunciation: Reys Eep-sah Low-quee-tur

Legal Latin Pronunciation: Rays Eep-seh Low-quit-tour

The New College Latin and English Dictionary says….

  • res, rei, or rei: f Thing; matter, affair; object; circumstance; event, occurrence; property, possessions, wealth; estate, effects;
  • ips-a, -ius: adj (f) self, very, just, mere, precisely; in person; by herself, alone; of her own accord; she, herself
  • loqor, loqui, locutus sum: tr To say; to talk of, speak about; to tell, tell of, mention; (fig) to declare, show, indicate (here: present indicative)

Phrases

  • “res ipsa”: in fact, in reality

Ergo…

Res Ipsa Loquitur: “The thing” “speaks” (for) “itself”

During my first year of law school, I thought this was one of the best use of latin. Not because those who first used the phrase were referring to any important political oration from ancient Rome, but because the latin expressed the meaning of the word so much better than english ever would. As I see it, given the rampant personification of inanimate things and animals in our culture, getting across the idea that a situation speaks for itself so boldly required something different. Because honestly, jaw dropping situations only happen so often – and typically, they leave us speechless. (So why not babble some latin, while you’re at it?)

Getting to the point, though… In a discussion about legal Negligence that can have a huge amount of nuance (who has what responsibility and what are/were reasonable actions taken because of that responsibility (Duty of Care and Breach, for those following along)) – this was the easy situation. Given the facts, there is just no possible way that there wasn’t some sort of negligence, even if you couldn’t put your finger on who did it. (Don’t you just love double negatives?)

Or as I like to say – this is the “Train Wreck” doctrine.

Specifically, its the train wreck at Montparnasse in 1895 Paris, France…

This image has forever been emblazoned in my mind as the true definition of “res ipsa loquitur“. Just ask yourself…

“How did that happen?”

If your answer is: “Someone, somewhere, with power to avoid this situation did something they weren’t supposed to.” – then you’ve gotten it right.

For the law, the power of this doctrine comes from the fact that there is no direct evidence of how anyone accused of being negligent behaved. The negligence is inferred from the fact that there was an accident at all. The kicker for pinning a defendant with the blame is whether they had “exclusive control” over the “instrumentality” that cause the accident. (Restatement  (Second) of Torts, § 328D)

While not originally applied to medical malpractice cases, now our big case on point for it is Gray v. Wright  where a surgical team was found to be negligent. Why? Because back in 1957, a seven-inch hemostat was removed from a woman six years after her gall bladder surgery. As for evidence of negligence… the only way for the instrument to have gotten in there was for the surgical team to have left it. She didn’t have to prove that any one particular person was negligent, because the fact that it’s there at all “speaks for itself”.

I could go on and on about other, more modern forms of the doctrine, but I’m here to talk about the language! So where was the ancient use of the phrase? In an oration entitledPro Milone by Marcus Tullius Cicero, 52 BC.

A very, very brief sum of the situation has Cicero attempting a defense for his friend Milo against murder charges by saying that Milo acted out of self defense. As part of the oration, Cicero sets up the facts that Milo killed Clodius out of self defense. Milo was traveling on official business, heavily encumbered in regalia, with his family and house (“harmless slave”, etc.); Clodius had been missing from the political scene earlier that day… so when the two met (Clodius traveling alone, on a horse), Milo’s actions were in line with self-defense, rather than murder because under the circumstances, it was not logical for him to act in such a manner unless such a manner was necessitated by circumstance. (The need to kill in self defense speaks to the situation where one is ambushed, rather than where one is out to murder.)

For those of you who want the full scoop, here’s the wiki-link. (I’m actually quite impressed by Wiki’s editors’ ability to get so much decent info about ancient topics, but then again, classicists have been at this for over 2k years and its not like the story is open to interpretation anymore.) FWIW – Another great resource for latin translations (rather than summaries of stories) is the Perseus Collections  through Tufts University.

So what does all of this mean for the prima facie v. res ipsa loquitur debate?

Prima Facie – “At first sight”

A noun phrase used to describe evidence for a case that has all of the components of proving the case required by law. (Eg: a Copyright registration in a case of infringement.) For common law, unless rebutted, the evidence would be enough to prove your case, or at least a fact in your case.

Res Ipsa Loquitur – “The thing speaks for itself”

A noun phrase used to describe evidence for a case of negligence where the situation itself provides the inference of guilt. Someone with responsibility (Duty of Care) and exclusive control over the situation MUST have done something wrong (Breach) because common sense says that the accident/occurrence could not have happened otherwise. Trains don’t go through the second story of a building on their own, nor do medical instruments grow organically in little old ladies.

The distinction, then, is in the thing being self evident. It is the facts that make it so that the situation is self evident or the situation that necessitates some facts had to have happened.

Prima facie – FACTS Res ipsa loquitor – THING

And now that I’ve shown the world that the best way to make this distinction can be found in the latin itself, which takes abstract legal concepts and boils them down into words from a beautiful language – my job is done!

Okay class – homework for next time is reading chapters 4-6 of Cicero’s De Legibus . Get reading!

Pax,

Vestra Magistra, Esq.

[Also – extra credit for the student who can tell me what “Quid pro Quo” means, and not just the translation. It’s probably one of the more common uses of latin for business and law… and as our friend Inigo Montoya says… “I do not think it means what you think it means.”]

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Non-Profit, COICA, and Activism

So if you know anything about my background, you know that I’m a big proponent of Non-Profit efforts to assist artists with legal endeavors. When I had the resources, I volunteered with the Volunteer Lawyers for the Arts in Boston, MA (http://www.vlama.org ) – and have been inspired to eventually try an open a Western Mass branch of the project. (You know, when I have the experience and capital to do so.)

So it should come as no big surprise that one of the largest resources that helps me keep my ear to the ground with Intellectual Property concerns is a stellar non-profit that makes it their business to know what is happening to IP on a national scale: the Electronic Frontier Foundation  Their work is important to me for a number of reasons, but the kicker is rooted in one of my fundamental beliefs about IP in the United States:

Current laws regarding intellectual property are typically far behind the current applications or innovations. However, in order to protect a flagging business model, large organizations attempt to try and apply out-dated laws against new technical or social innovations that have the ability to reinvent the marketplace. Not only that, but instead of supporting new innovations, the same organizations have the money and lobbyists required to make both the technology or the new applications illegal under the old laws.

This is why reform is critical to any pursuit of Intellectual Property, especially the kind of reform that takes into account cutting-edge applications or projected applications, and encouraging their growth. (The history and effect of the E-Sign act is an incredible step for progress in this area.) But this is also why keeping your ear to the ground about what the large organizations are doing with private companies that support the infrastructure of technology (ISPs, etc.) or what they are attempting to pass through congress is incredibly important.

So with all of that said – let me introduce to you one of my most trusted sources of information on this front. Here’s a link to their “About” section, because they say it so well: About EFF

Basically, they are as close to my dream job as one could get outside of helping individual artists – fighting to keep innovation alive and personal freedom’s secure. Which is why whenever I receive an email alert from them, I pay attention. Here’s a briefing of the alert regarding a bill which (fortunately) was just shelved in the senate – “The Combating Online Infringement and Counterfeits Act” or COICA. There’s a ton of information on the bill right now, so bare with me as I catch you up. The best summary I’ve been able to find is through the Memo that EFF posted on their COICA site:

EFF’s page on the subjecthttp://www.eff.org/coica

The “Combating Online Infringements and Counterfeits Act” (COICA) is an Internet censorship bill which is rapidly making its way through the Senate. Although it is ostensibly focused on copyright infringement, an enormous amount of noninfringing content, including political and other speech, could disappear off the Web if it passes.

The main mechanism of the bill is to interfere with the Internet’s domain name system (DNS), which translates names like “www.eff.org” or “www.nytimes.com” into the IP addresses that computers use to communicate. The bill creates a blacklist of censored domains; the Attorney General can ask a court to place any website on the blacklist if infringement is “central” to the purpose of the site.

If this bill passes, the list of targets could conceivably include hosting websites such as Dropbox, MediaFire and Rapidshare; MP3 blogs and mashup/remix music sites like SoundCloud, MashupTown and Hype Machine ; and sites that discuss and make the controversial political and intellectual case for piracy, like pirate-party.us, p2pnet, InfoAnarchy, Slyck and ZeroPaid . Indeed, had this bill been passed five or ten years ago, YouTube might not exist today. In other words, the collateral damage from this legislation would be enormous. (Why would all these sites be targets?)

There are already laws and procedures in place for taking down sites that violate the law. This act would allow the Attorney General to censor sites even when no court has found they have infringed copyright or any other law.

Memo via EFF from the Center for Democracy and Technology: Link

Copyright infringement is a serious problem, and CDT harbors no sympathy for websites whose primary purpose is to enable widespread violation of copyright and other intellectual property rights. But methods embraced by S. 3804, the “Combating Online Infringement and Counterfeits Act,” would mark a sea change in U.S. policy towards the Internet. In particular, U.S. government action to seize domain names and to direct Internet Service Providers (ISPs) to block government-blacklisted sites would set dangerous precedents with serious consequences for free expression, global Internet freedom, and the Internetʼs open and global architecture. If enacted, the bill would be a significant step towards the balkanization of the Internet. These consequences are much too significant to address in a rushed fashion in the waning hours of the 111th Congress.

S. 3804 raises major problems in the following areas:

1. Free Speech (Due Process and Prohibitions against Prior Restraint)
2. Global Internet Freedom / International Human Rights
3. Internet Architecture / Role of ISPs
4. Internet Governance / Domain Name System
5. Ineffectiveness and Security Risks from Evasion

And FYI – Another internet resource following this development is Techdirt , which is a highly respected blog that follows, in addition to a number of IP related interests, bills in the senate related to this and other COICA issues.

“Alright, Nicole,” you’re saying to yourself right now. “So what’s going on right now that we need to be aware of?”

Fine, fine. I’ll get to the point. The bill was intended to get passed under-the-radar and without review from congress people or with open discussion. It was postponed because of “An Open Letter From Internet Engineers to the Senate Judiciary Committee”  and because of the actions of individuals who actually wrote to their senators, letting them know what was happening, something you can do through the EFF Action Center .

What’s of concern right now is that the same companies are attempting to get the ISPs that would be impacted to voluntarily create this blacklist, the implications of which would be even harder to combat as an affront to both Net Neutrality, censorship, or constitutional protections. It really makes my skin crawl.

I’ll be looking more into what the word is for the voluntarily black list, but readers-be warned, this bill is set to be reintroduced and fast-tracked after the mid-term elections.

Here’s to keeping ahead of their game.

 

(c) Nicole L. M. Jurkowski 2010

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Privacy in Social Networking

So I ran across this article a week ago, and I’ve been stewing on what it means, both as an attorney and as a facebook user…. and it leaves me asking the question:

What do you think your rights are when it comes to “private” facebook posts? “Private” meaning that you have them selected as “friends only”.

So here’s the story…

Judge Grants Discovery of Postings on Social MediaLink

Plaintiff must give defendant access to private postings from Facebook and MySpace that could contradict personal injury action claims

Acting Justice Jeffrey Arlen Spinner (See Profile) of New York’s Suffolk County Supreme Court held that precluding defendant Steelcase Inc. from accessing Kathleen Romano’s private postings on Facebook and MySpace “not only would go against the liberal discovery policies of New York favoring pretrial disclosure, but would condone Plaintiff’s attempt to hide relevant information behind self-regulated privacy settings.”

The judge continued, “In light of the fact that the public portions of Plaintiff’s social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action.”

In 2003, Romano fell off an allegedly defective desk chair while working at Stony Brook University. Claiming she sustained “serious permanent personal injuries” and had to undergo multiple surgeries, she sued Steelcase Inc., the manufacturer of the chair, and the chair’s alleged distributor, Educational & Institutional Cooperative Services Inc.

Among other things, she maintained that she had herniated discs, restricted motion in her neck and back, and “pain and progressive deterioration with consequential loss of enjoyment of life.”

However, Steelcase said in court papers that Romano’s claims were belied by public portions of her Facebook and MySpace profiles, which “reveal[ed] that she has an active lifestyle and can travel and apparently engages in many other physical activities inconsistent with her claims in this litigation.”

For example, Steelcase said Romano’s public profile on Facebook depicted her “smiling happily in a photograph outside the confines of her home despite her claim that she … is largely confined to her house and bed.”

Steelcase subsequently served Romano with a notice for discovery requesting “authorizations to obtain full access to and copies of Plaintiff’s current and historical records/information on her Facebook and MySpace accounts.”

After she refused to provide this information, Steelcase moved by order to show cause to obtain access to Romano’s accounts.

(There’s more to the article, so feel free to follow the link to read it all.)

And here’s what I’ve been thinking:

The plaintiff in this case is attempting to keep secret from the defense some amount of information that they posted on Facebook. The argument is that the postings were made with an expectation of privacy; the settings of the plaintiff’s Facebook only allow a restricted number of people to view the information. (Later in the article, she is also arguing trying to protect her information because getting access to *all* of the information would necessarily include irrelevant information, and having such information revealed would be “harassing and intimidating”. Both good points – but no one likes having their information rummaged through to find the truth you’re attempting to hide, or to find evidence against the case your trying to build, so that’s another story entirely.)

However, because the information is relevant to the case, and because the New York laws on discovery of information are “liberal” – the defense has argued that they have a right to see the information. What this means is that they will have evidence from the plaintiff’s own “mouth” regarding some aspect of the case.

So with that in mind, let’s take a moment to understand privacy for the courts. Privacy, in it’s most sacred sense for the court, is that between two groups: 1) married couples (in order to maintain the stability of a marriage, which is good for society) and 2) professionals and their clients. In this case, between lawyers and their clients when speaking about the case. The idea is that in order of the lawyer to do their job properly, they must be able to maintain the utmost confidence that words spoken by their client are heard by no one other than the attorney (and relevant aides). One of the first things to destroy this confidentiality is to have “someone else” in the room. That someone else could be a spouse, a parent, or a friend and witness to the events. (My favorite example is that when a parent is bringing a suit on behalf of their child, the child and the attorney must talk in private, and the parent cannot be in the room – or the confidentiality is broken).

That being said, when you look at what the Plaintiff wants to protect – statements related to the case that he made under “self-regulated privacy” on a social media network – the shield of privacy is rather flimsy. Not only are you broadcasting information to your friends, but the legal expectation of the privacy of that information is zero to none. If you wouldn’t post pictures of yourself drinking because you know that potential employers will search the site, why would you post arguably damning information about a law suit you’re current involved in?

At this point, if you haven’t realized that anything you post on the internet, “private” or not, isn’t open to public consumption – then you have other problems.

But this one is certain: The warning from the courts (like the one in this article) is clear. Lawyers, especially young attorneys like myself, are savvy to the internet – and if you post information related to something “private”, then it’s only reasonable that we search for that information in fulfillment of our client advocacy. Now, while it remains unethical to be-friend you under false pretenses in order to gain the information* Link , it is certainly possible to get the information through discovery under a common-sense argument: If it was really that private, then they wouldn’t have posted it on Facebook.

Pax,
Just Saying, Esq.

And just as an afterthought, since I was trying to focus on an expectation of privacy, Facebook was also claiming that they couldn’t provide the information, because:

Producing Romano’s profile without her consent violates the federal Stored Communications Act, which bars Facebook from “producing a non-consenting subscriber’s communications even when those communications are sought pursuant to a court order or subpoena,” Facebook argued in court papers.

This I would be interested in, because gaining access to information stored online is a serious issue to pay attention to. We all have an expectation that in order to violate our privacy, anyone coming after it will have to go through getting a subpoena/etc. to access it. In fact, the opposite is becoming more true as some copyright-infringement bullies are making deals with or convincing ISPs that such information is best turned over voluntarily.

This is one of the goals of the proponents of a bill being shelved, momentarily, in our governmental process. It’s called “The Combating Online Infringement and Counterfeits Act (COICA)”. While being shelved, they are asking those who would be effected to voluntarily block websites “known” for “copyright infringement” – and completely bypassing due process and blindsiding net-neutrality.

For more information, check out the link: https://www.eff.org/coica . I should be posting more about this bill, and it’s potential effects, soon.

 

(c) Nicole L. M. Jurkowski 2010

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Banned Technology

I saw an article very close to my heart on Tech-Dirt, and I had to share.

A Look At The Technologies & Industries Senators Leahy & Hatch Would Have Banned In The Past

http://www.techdirt.com/articles/20100925/12401911168/a-look-at-the-technologies-industries-senators-leahy-hatch-would-have-banned-in-the-past.shtml

Pax,
Ancient History, Esq.

 

(c) Nicole L. M. Jurkowski 2010

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[Latin] Prima Finally

PRIMA FACIE

Academic Latin Pronunciation: Pree-mah fa-key-eh

Legal Latin Pronunciation: Pry-mah fey-sha

(And yes, I took a linguistics class, but it’s much easier to get my point across with more literal “sounding” letters.)

The New College Latin and English Dictionary says….

  • prima, -orum: npl first part, beginning; first principles or elements
  • faci-es, -ei: f face; look, facial expression; appearance; make, form, shape, outline; nature, character; pretense, pretext;

 

Ergo…

 

Prima facie can mean a number of things, but at the heart of it, it’s pretty simple. Even wikipedia denotes prima facie as meaning “at first sight”. That’s arguably how the term was used, but more as a colloquialism than a literal translation. Literally, you could use the term when speaking about the first half of a double take, but that’s not what we’re going for.

 

So at the heart of the language, there are two very distinct concepts being combined to make the legal term of art. Legal, as opposed to the “we want to use latin and sound smart” use. (You know, ’cause Omnis sanus melior in latina.)

 

In the case of legal latin – “Prima” refers to the primary or first elements presented in a case. “Facies” is better understood as “outline” “nature” or “character” of the case itself. So the term of art, therefore, is used to denote the first elements which outline the nature of the case. And if that is all that you need for an explanation of the case itself, then the case is made. Having “prima facie” evidence (adjective form) means that you have all of the elements needed to present a case.

 

In sum: A copyright registration is prima facie evidence for a dispute over ownership of a copyright – the fact that you have a registration means that you provided all evidence to the appropriate authority to claim the piece as yours, so you are presumed to have all evidence necessary to win your dispute. Therefore, rebutting this kind of evidence is very hard to do, and requires much more work and can be more expensive. (Read: If someone else steals and improperly registers your material, there’s going to be a law suit involved to get it corrected. And they’re going to have better evidence than you. So register early and often, folks!)

 

Dicta: This phrase “prima facie” is, of course, distinguished from the concept of “Res Ipsa Loquitor” which relates to a similar concept for the evidence of negligence, but that’s a whole other post.)

 

Now was that so hard, class?

Any questions?

Okay, homework is reading chapters 1-3 of Cicero’s De Legibus  for next time.

 

Pax,

Vestra Magistra, Esq.

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