As long as it is admitted that the law may be diverted from its true purpose — that it may violate property instead of protecting it — then everyone will want to participate in making the law, either to protect himself against plunder or to use it for plunder.
Frédéric Bastiat, The Law, 1850.
September 26, 2018
QotD: Offensive and defensive use of the law
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March 6, 2018
Playboy‘s extortion attempt against Boing Boing dismissed
Back in January, I linked to the bizarre story of Playboy attempting to sue Boing Boing for the terrible crime of … linking. On the web. I’m not making this up. Thankfully, common sense finally did triumph as reported on Monday:
In January, we let you know that Playboy had sued us. On Valentine’s Day, a court tossed their ridiculous complaint out, skeptical that Playboy could even amend it. Playboy didn’t bother to try.
We are grateful this is over. We are grateful for the wonderful work of the EFF, Durie Tangri, and Blurry Edge, our brilliant attorneys who stood up to Playboy‘s misguided and imaginary claims. We are glad the court quickly saw right through them.
Playboy damaged our business. This lawsuit cost our small team of journalists, artists and creators time and money that would otherwise have been focused on Boing Boing‘s continued mission to share wonderful things.
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February 13, 2018
The Grand Tour: Legally Tesla
The Grand Tour
Published on 12 Feb 2018In a test of the Tesla Model X, Jeremy Clarkson is joined by lawyers in this legally perilous task.
****These observations about the Tesla Model X are made in Clarkson’s personal capacity and should not be regarded as any statement or opinion by any other person or entity about the general safety, road worthiness, mechanical effectiveness, or any other standards of the vehicle about this specific model or any other Tesla vehicle.
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January 19, 2018
Playboy sues Boing Boing for … linking?
I thought this sort of legal stupidity went out with the 90s …
A few weeks ago we were shocked to learn that Playboy had, without notifying us, sued us over this post (we learned about it when a journalist DM’ed us on Twitter to ask about it). Today, we filed a motion to dismiss, asking the judge to throw out this baseless, bizarre case. We really hope the courts see it our way, for all our sakes.
Playboy’s lawsuit is based on an imaginary (and dangerous) version of US copyright law that bears no connection to any US statute or precedent. Playboy — once legendary champions for the First Amendment — now advances a fringe copyright theory: that it is illegal to link to things other people have posted on the web, on pain of millions in damages — the kinds of sums that would put us (and every other small publisher in America) out of business.
Rather than pursuing the individual who created the allegedly infringing archive, Playboy is pursuing a news site for pointing out the archive’s value as a historical document. In so doing, Playboy is seeking to change the legal system so that deep-pocketed opponents of journalism can shut down media organizations that displease them. It’s a law that they could never get from Congress, but which they hope the courts will conjure into existence by wiping us off the net.
It’s not just independent publishers who rely on the current state of copyright law, either. Major media outlets (like Playboy!) routinely link and embed media, without having to pay a lawyer to research the copyright status of something someone else posted, before discussing, explaining or criticizing it.
The world can’t afford a judgment against us in this case — it would end the web as we know it, threatening everyone who publishes online, from us five weirdos in our basements to multimillion-dollar, globe-spanning publishing empires like Playboy.
As a group of people who have had long associations with Playboy, reading the articles (really!) and sometimes writing them, we hope the judge sees it our way — for our sakes… and for Playboy‘s.
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January 18, 2018
Weird lawsuit filed against Waymo engineer
In The Register, Kieren McCarthy reports on the case:
The engineer at the center of a massive self-driving car lawsuit – brought by Google-stablemate Waymo against Uber – neglects his kids, is wildly disorganized, and has a large selection of bondage gear, his former nanny has sensationally alleged.
Anthony Levandowski may also be paying a Tesla techie for trade secrets, may have secretly helped set up several self-driving car startups, and at one point planned to flee across the border to Canada in an effort to avoid the legal repercussions of his actions at both Waymo and Uber, it is further claimed.
Those extraordinary allegations come in a highly unusual lawsuit [PDF] filed earlier this month by his ex-nanny Erika Wong, who worked for Waymo’s former star engineer for six months, from December 2016 to June 2017.
Wong’s lawsuit identifies no less than 41 causes of action – ranging from alleged health and safety code violations to emotional distress – and asks for a mind-bogglingly $6m in recompense. Levandowski’s lawyer said the lawsuit is a “work of fiction.”
Not safe for work bits below the fold:
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January 14, 2018
Google’s unhealthy political monoculture
Megan McArdle doesn’t think that the lawsuit that James Damore is pursuing against Google has a lot of legal merit, but despite that she’s confident that the outcome won’t be happy for the corporation:
The lawsuit, just filed in a California court, certainly offers evidence that things were uncomfortable for conservatives at Google. And especially, that they were uncomfortable for James Damore after he wrote a memo suggesting that before Google went all-out trying to achieve gender parity in its teams, it needed to be open to the possibility that the reason there were fewer women at the firm is that fewer women were interested in coding. (Or at least, in coding with the single-minded, nay, obsessive, fervor necessary to become an engineer at one of the top tech companies in the world.)
That much seems quite clear. But it’s less clear that Damore has a strong legal claim.
I understand why conservative employees were aggrieved. Internal communications cited in the lawsuit paint a picture of an unhealthy political monoculture in which many employees seem unable to handle any challenge to their political views. I personally would find it extremely unsettling to work in such a place, and I am a right-leaning libertarian who has spent most of my working life in an industry that skews left by about 90 percent.
But these internal communications have been stripped of context. Were they part of a larger conversation in which these comments seem more reasonable? What percentage did these constitute of internal communications about politics? At a huge company, there will be, at any given moment, some number of idiots suggesting things that are illegal, immoral or merely egregiously dumb. That doesn’t mean that those things were corporate policy, or even that they were particularly problematic for conservatives. When Google presents its side of the case, the abuses suggested by the lawsuit may turn out to be considerably less exciting — or a court may find that however unhappy conservatives were made by them, they do not rise to a legally actionable level.
Google, for its part, says that it is eager to defend the lawsuit. But lawyers always announce that they have a sterling case that is certain to prevail, even if they know they are doomed. And unless they can present strong evidence that there were legions of conservatives happily frolicking away on their internal message boards while enjoying the esteem of their colleagues and the adulation of their managers, there is no way that this suit ends well for Google. If the company and its lawyers think otherwise, they are guilty of a sin known to the media as “reading your own press releases,” and to drug policy experts as being “high on your own supply.”
There are expensive, time-consuming, exasperating lawsuits, and then there are radioactive lawsuits that poison everyone who comes within a mile of them. And this lawsuit almost certainly falls into the latter category.
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November 15, 2017
Ignorance of the law … is inevitable, because there are so many laws
We’ve all heard the old saying that “ignorance of the law is no excuse”, but there has been such massive growth in the number and scope of laws in the last couple of generations that even the people who work in the legal field can’t possibly keep up. What chance do average citizens have to ensure they aren’t accidentally falling afoul of unknown (and for all practical purposes, unknowable) legal traps?
“Because I said so.” “Life isn’t fair.” “Ignorance of the law is no excuse.” These are some of the great cop-outs of all time, and the last one is particularly troubling in a country with so many laws that it is impossible to count — let alone read — them all. When was the last time you sat down with a complete set of the federal, state, and local codes setting forth the tens of thousands of criminal violations for which you could be sent to jail? If you answered “never,” you’re in good company. Nevertheless, America’s judges still cling to the proposition that it’s perfectly fine to lock people up for doing something they had no idea was illegal. But it’s not fine, and the justifications for that palpably unfair rule have only grown more threadbare with time.
Laws Are Not Even Countable, Much Less Knowable
Things have gotten so bad that even an act as innocent as sharing a Netflix password or a bank website password with a family member could potentially carry criminal penalties if the website disallows password sharing. The Computer Fraud and Abuse Act of 1986 bans intentionally accessing a computer “without authorization,” and the Supreme Court has recently declined to hear a case from the Ninth U.S. Circuit Court of Appeals, United States v. Nosal, that held that password sharing could be prohibited by the Act. Although the majority opinion did not explicitly mention innocent password sharing, the dissent noted that the lack of any limiting principle meant that the majority’s reasoning could easily be used to criminalize a host of innocent conduct.
One rationale for the maxim that ignorance of the law is no excuse was to give people an incentive to educate themselves about legal requirements. But as any law student will attest, one can study those requirements for years and barely scratch the surface. Another rationale was to prevent people from escaping criminal penalties by claiming ignorance, even when they actually knew they were breaking the law. That might have made sense in ancient times when there were only a few dozen crimes on the books and all of them involved morally blameworthy conduct like murder, arson, or rape.
But today the law has grown so complicated, and the relationship between law and morality so attenuated, that these supporting rationales no longer make sense. There have been multiple attempts to count the number of federal crimes, including by the Department of Justice, and no one has yet succeeded. Title 18 of the United States Code, which governs crimes and criminal procedure, has over 6,000 sections, and it is estimated that there are more than 4,500 federal crimes and over 300,000 agency regulations containing criminal penalties. And of course, this does not include the dizzying array of state and local criminal codes, ignorance of which is practically assured but still not excused.
In 2009, Harvey Silverglate wrote Three Felonies a Day: How the Feds Target the Innocent. That was long enough ago that three is almost certainly an under-estimate by now … there are so many more laws and regulations that have been added (or “enhanced”) since then.
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November 3, 2017
Egyptian lawyer discovers a “duty to rape” women who wear revealing clothes
It may be just a vivid fantasy on western university campuses, but rape culture is real … in Egypt:
An Egyptian lawyer has sparked a controversy by saying that it is a “national duty” to rape women who wear revealing clothes. During a heated television debate on prostitution aired on a local television channel, the lawyer said it would be a “patriotic duty” of citizens to sexually harass such women.
Nabih al-Wahsh, a locally popular lawyer with strong conservative views, was among several guests who were debating a new draft law on prostitution broadcast on the Egyptian television channel, al-Assema. When the panel’s debates became more heated, Wahsh, at one point insisted that females wearing revealing clothes deserve to be punished.
“Would you accept a girl walking around with half of her thigh showing?” he shouted at a fellow panellist before quickly adding: “I say when a girl is walking around like that, harassing her is a patriotic duty, and raping her is a national duty.”
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October 23, 2017
It’s legal to sell 2×4 lumber that’s not actually 2″ by 4″
Not only is it legal, that’s the way construction lumber has been marketed and sold for decades. A recent Illinois case against US DIY chain Menards was dismissed recently:
A federal judge has slammed the door on the Illinois lumber shoppers who sued Menards claiming it deceived them about the size of its 4x4s.
Saying no reasonable consumer would regard Menards’ descriptions of its lumber the way plaintiffs Michael Fuchs and Vladislav Krasilnikov said they did, the judge last week dismissed the would-be class action lawsuit against the Wisconsin-based home-improvement chain.
The decision by U.S. District Judge Edmond Chang throws out a case in which Menards was accused of deception because it marketed and labeled its 4x4s without specifying that the boards measure 3½ by 3 ½ inches.
So-called dimensional lumber — 2x4s, 4x4s, 2x6s and such — is commonly sold by names that do not specify the measurements of the pieces. The longstanding industry convention is recognized by the U.S. Department of Commerce, which distinguishes between the “nominal” designations for pieces of lumber and their actual size. The department says a 2×4, for example, can measure 1½ inches thick by 3½ inches wide.
The distinction between the name and the actual dimensions stems from the fact that lumber, when it is produced, typically is trimmed to smooth it after the initial rough cut, Chang said in his decision.
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October 14, 2017
Brexit hangover – a proposed deal for the “Remoaners”
In Spiked, Brendan O’Neill offers an olive branch to the Remoaners:
I propose a deal with Remoaners: Leavers will stop calling you enemies of democracy when you stop behaving like enemies of democracy. Sound good?
By Remoaners, I don’t mean the 16.1million who voted Remain, the vast majority of whom are not part of any elite, and a huge chunk of whom now accept Brexit must happen. I don’t even mean those sad people who traipse through the streets shouting ‘Brex-shit!’ and who agitate, or at least tweet, for Britain to stay in the EU: the rights to protest and speak are essential to democracy and these people must be free to fulminate for as long as they like against the democratic will. No, I mean those sections of the elite who have sworn their financial, political and institutional clout to the cause of preventing or diluting Brexit. You guys: we’ll stop calling you destroyers of democracy when you stop trying to destroy democracy, cool?
The war on Brexit – which is a war on the largest democratic mandate in British history, on the very right of the masses to decide the fate of their nation – is getting serious. For too long Leavers have had a tendency to chortle at the myriad spittle-producing haters of Brexit in business, politics, the law. But it’s not funny anymore, because they’re in the ascendancy. Not courtesy of democracy; the people have rejected their preference for oligarchy over democracy, for technocracy over debate, for expertise over the public’s opinions and beliefs. No, their rise, their influence, is built on their economic supremacy and behind-closed-doors influence, on the fact that they are wealthier, better connected and – let’s be frank – more ruthless than us, the demos.
The seriousness of this bloodless coup d’etat against Brexit has been perfectly and brutally summed up this week in the elitists’ suggestion that we revoke Article 50. Not content with seeking to wound Brexit – by, for example, suggesting we stay under the jurisdiction of the European Court of Justice, or institute a second referendum even before Brexit has become a reality – now they’re openly calling for the whole thing to be reversed. The Observer revealed on Sunday that, contrary to what some ministers have intimated, Article 50 is revocable. This is all the proof we needed, said a QC in the Guardian, that it is ‘not too late to step back from the Brexit brink’. Translation: the plebs, the unwashed throng, took us to a political cliff edge with their strange, prejudiced passions, and now it falls to the clever, the legally minded, the rational, to put Britain back on course.
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August 12, 2017
Troll the Patent Trolls
Published on 11 Aug 2017
Patent trolls are on the run. Let’s finish them off.
———
It’s been a bad year for patent trolls, from a Supreme Court decision squelching their ability to funnel lawsuits to East Texas, to this week’s ruling that Personal Audio LLC can’t claim it owns a patent on the entirety of podcasting. In the latest Mostly Weekly, Reason’s Andrew Heaton explores what patent trolls are, the damage they do, and the next step in driving them out of courtrooms and back into dank caves.Trolls camp out on piles of weak and frivolous patents, hoping to one day sue inventors and businesses. Many of the patents they register or buy are vague, representing novel ideas only insofar as trolls are innovative at finding things they didn’t invent to claim legal ownership of. It doesn’t matter that these patents wouldn’t hold up in court, because a business is more likely to pay off a troll than to hire an expensive attorney to fight them. Trolls suck more than twenty billion dollars out of the economy each year.
The parasitical nature of “non-practicing entities” (the PC term for trolls) has raised questions about whether the modern patent system helps or hinders innovation, and if the best solution is for comprehensive reform or just to burn the whole thing down.
Heaton has an idea to hinder patent trolls. It may not be a silver bullet, but it will definitely piss them off.
Mostly Weekly is hosted by Andrew Heaton with headwriter Sarah Rose Siskind.
Script by Andrew Heaton with writing assistant from Sarah Siskind
Edited by Austin Bragg and Sarah Rose Siskind.
Produced by Meredith and Austin Bragg.
Theme Song: Frozen by Surfer Blood.
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May 23, 2017
QotD: The dangers of career “dualization”
This concept [of dualization] applies much more broadly than just drugs and colleges. I sometimes compare my own career path, medicine, to that of my friends in computer programming. Medicine is very clearly dual – of the millions of pre-med students, some become doctors and at that moment have an almost-guaranteed good career, others can’t make it to that MD and have no relevant whatsoever in the industry. Computer science is very clearly non-dual; if you’re a crappy programmer, you’ll get a crappy job at a crappy company; if you’re a slightly better programmer, you’ll get a slightly better job at a slightly better company; if you’re a great programmer, you’ll get a great job at a great company (ideally). There’s no single bottleneck in computer programming where if you pass you’re set for life but if you fail you might as well find some other career path.
My first instinct is to think of non-dualized fields as healthy and dualized fields as messed up, for a couple of reasons.
First, in the dualized fields, you’re putting in a lot more risk. Sometimes this risk is handled well. For example, in medicine, most pre-med students don’t make it to doctor, but the bottleneck is early – acceptance to medical school. That means they fail fast and can start making alternate career plans. All they’ve lost is whatever time they put into taking pre-med classes in college. In Britain and Ireland, the system’s even better – you apply to med school right out of high school, so if you don’t get in you’ve got your whole college career to pivot to a focus on English or Engineering or whatever. But other fields handle this risk less well. For example, as I understand Law, you go to law school, and if all goes well a big firm offers to hire you around the time you graduate. If no big firm offers to hire you, your options are more limited. Problem is, you’ve sunk three years of your life and a lot of debt into learning that you’re not wanted. So the cost of dualization is littering the streets with the corpses of people who invested a lot of their resources into trying for the higher tier but never made it.
Second, dualized fields offer an inherent opportunity for oppression. We all know the stories of the adjunct professors shuttling between two or three colleges and barely making it on food stamps despite being very intelligent people who ought to be making it into high-paying industries. Likewise, medical residents can be worked 80 hour weeks, and I’ve heard that beginning lawyers have it little better. Because your entire career is concentrated on the hope of making it into the higher-tier, and the idea of not making it into the higher tier is too horrible to contemplate, and your superiors control whether you will make it into the higher tier or not, you will do whatever the heck your superiors say. A computer programmer who was asked to work 80 hour weeks could just say “thanks but no thanks” and find another company with saner policies.
(except in startups, but those bear a lot of the hallmarks of a dualized field with binary outcomes, including the promise of massive wealth for success)
Third, dualized fields are a lot more likely to become politicized. The limited high-tier positions are seen as spoils to be distributed, in contrast to the non-dual fields where good jobs are seen as opportunities to attract the most useful and skilled people.
Scott Alexander, “Non-Dual Awareness”, Slate Star Codex, 2015-07-28.
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May 12, 2017
QotD: Don’t talk to the police without legal counsel
“Don’t talk to law enforcement without consulting a lawyer” is simple advice. Anyone can follow it. Most of us understand why it’s a good idea. But too many people reject the advice because of a common and misplaced fear. It’s the fear that if they don’t return that detective’s call immediately, if they don’t invite the FBI agents at their door in and answer their questions, if they don’t cooperate, they will be seen as the sort of person who wants a lawyer. They will be seen as someone suspicious. They will lose the opportunity to “clear all this up” by “cooperating.”
If I say I want to talk to a lawyer, won’t I make things worse?
No. Almost certainly not.
When you view any interaction as your only opportunity to “cooperate,” you’re accepting a false premise, a law enforcement pressure tactic calculated to get you to act against your best interests and better judgment. On television, cops constantly tell suspects “you have to talk now, talk first, or we’ll give a deal to your buddy.” On television, that proposition is presented as true. But real life isn’t like television. In real life, that “now or never” proposition is almost always false. In 21 years practicing criminal law, I have never seen a circumstance where stopping the interview and talking to a lawyer would have destroyed someone’s opportunity to talk to law enforcement and resulted in harm to their best interests. There’s always been another chance, once the client has talked to a lawyer and taken advantage of competent advice about the situation.
The police want you to talk immediately, now, when they are unexpectedly at your front door. They want you to be startled, nervous, out-of-sorts. They want you to blurt things out — either admit true things that they can use against you, or make false statements that they can disprove and use to show you’re a liar. They don’t want you to have time to collect your thoughts, to refresh your memory about the events they are asking about, to look at any relevant documents or evidence, or to figure out the legal significance of the situation. The police know that’s against your best interests. They know that you should talk to a lawyer first. How do you know that they know that? You know because police officers consistently push for state laws and union rules allowing them to talk to a lawyer, review evidence, and take advantage of a waiting period before being interviewed about use-of-force incidents.
Good people — honest people — tend to think “I’ve done nothing wrong, so if I tell the truth now, I can clear this up.” They think “talking can’t hurt me because I haven’t done anything wrong, and because I won’t lie.” It would be wonderful if that were true, but it’s not.
Ken White, “‘If I Just Talk To The Police I Can Clear This Up’ — The Dangerous Delusion”, Brown, White & Osborn, 2015-09-24.
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January 13, 2017
QotD: Markets and politics
Markets adapt to political changes, and the hierarchy of values that distinguishes between an hour’s worth of warehouse management, an hour’s worth of composing poetry, an hour’s worth of brain surgery, and an hour’s worth of singing pop songs is not going to change because a politician says so, or because a group of politicians says so, or because 50 percent + 1 of the voters say so, or for any other reason. To think otherwise is the equivalent of flat-earth cosmology. In the long term, people’s needs and desires are what they are; in the short term, you can cause a great deal of chaos in the economy and you can give employers additional reasons to automate rote work. But you cannot make a fry-guy’s labor as valuable as a patent lawyer’s by simply passing a law.
This is not a matter of opinion — that is how the world actually works. One of the many corrosive effects of having a political apparatus and a political class dominated by lawyers is that the lawyerly conflation of opinion with reality becomes a ruling principle. Lawyers and high-school debaters (the groups are not alien to one another) operate in a world in which opinion is reality: If you convince the jury or the debate judges that your argument is superior, or if you can get them to believe that your position is the correct one, then you win, and the question of who wins is the most important one if you are, e.g., on trial for murder. But if you shot that guy you shot that guy, regardless of what the jury says — facts are facts. Galileo et al. were right (or closer to right) about the organization of the solar system than were Fra Hieronimus de Casalimaiori and the Aristotelians, and the fact that Galileo lost at trial didn’t change that.
Kevin D. Williamson, “Bernie Sanders’s Dark Age Economics”, National Review, 2015-05-27.
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January 3, 2017
Can this marriage be saved?
Megan McArdle reflects on what makes a marriage successful … politically:
While traveling a few months back, I ended up chatting with a divorce attorney, who observed that what we’re seeing in America right now bears a startling resemblance to what he sees happen with many of his clients. They’ve lost sight of what they ever liked about each other; in fact, they’ve even lost sight of their own self-interest. All they can see is their grievances, from annoying habits to serious wrongs. The other party, of course, generally has their own set of grievances. There is a sort of geometric progression of outrage, where whatever you do to the other side is justified by whatever they did last. They, of course, offer similar justifications for their own behavior.
By the time the parties get to this state, the object is not even necessarily to come out of the divorce with the most money and stuff; it’s to ensure that your former spouse comes out with as little as possible. People will fight viciously to get a knickknack neither of them particularly likes, force asset sales at a bad loss, and otherwise behave as if the victor is not the person who goes on to live a productive and happy life, but the one who makes it impossible for the ex to do so.
However damaging these battles are, at least they eventually end. Unfortunately, there is no divorce court for nations, and our last trial separation ended in the deaths of about 2 percent of the population. However much you have come to despise the other party, they’re still going to be there: tracking dirt into the halls of Congress, demanding an equal say in the direction of the ship of state. It doesn’t matter if you hate their ideas, their habits, and everything else about them; they’re not going anywhere. So you two had better figure out how to live together.
And you can easily imagine partisans of both sides angrily decrying “But they started it!”
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