Quotulatiousness

May 24, 2012

Losing big to (potentially) win small

Filed under: Law, Technology — Tags: , , , , — Nicholas @ 07:50

ESR on what might be the “beginning of the end” for patent warfare:

It’s all over the net today. As I repeatedly predicted, the patent claims in the Oracle-vs.-Java lawsuit over Android have completely fizzled. Oracle’s only shred of hope at this point is that Judge Alsup will rule that APIs can be copyrighted, and given the extent of cluefulness Alsup has displayed (he mentioned in court having done some programming himself) this seems rather unlikely.

Copyright damages, if any, will almost certainly be limited to statutory levels. There is no longer a plausible scenario in which Oracle gets a slice of Android’s profits or an injunction against Android devices shipping.

This makes Oracle’s lawsuit a spectacular failure. The $300,000 they might get for statutory damages is nothing compared to the huge amounts of money they’ve sunk into this trial, and they’re not even likely to get that. In effect, Oracle has burned up millions of dollars in lawyers’ fees to look like a laughingstock.

Of course, even if this is the beginning of the end, there will be lots of lawyers encouraging their clients to go down this route, as even if it’s not successful, it can be a very lucrative journey for the lawyers.

May 15, 2012

The Singularity, ruined by lawyers

Filed under: Humour, Law, Liberty, Media — Tags: , , , , — Nicholas @ 00:26

Credit to Tom Scott. H/T to Michael O’Connor Clarke.

April 22, 2012

For the defence

Filed under: Europe, Law — Tags: , , — Nicholas @ 11:09

Paul Mendelle explains why the Breivik trial in Norway seems so strange to those used to British or American court practice:

It’s the dinner party question that every barrister gets regularly asked — how do you defend people guilty of such terrible crimes as murder, rape and paedophilia? It’s a simple enough question, and one I expect to hear often now that the Anders Breivik trial is under way, but there’s not a simple answer. The query raises issues that go far beyond mere problems of professional ethics. It touches upon matters of fundamental constitutional importance to us all.

The shortest answer is to say that we don’t defend people who are guilty of these crimes; we defend people who are accused of them and who tell us they are not guilty. Contrary to just about every drama series on TV, barristers do not provide their clients with defences. It’s the other way around: clients give us their instructions, and we are bound to act strictly upon them. The joke among barristers is that if we were in the business of providing our clients with defences, we’d come up with something a damn sight better than they do.

[. . .]

But while we are obliged to take our clients’ cases and to act on their instructions, we are certainly not obliged to act as their mouthpiece. Quite the contrary, the court is not to be used as a soapbox from which the defendant spouts political views. We are obliged to defend the man accused of racially motivated crime if he is adamant he is not guilty, but not if he wants to use us to justify his racist views. And if we did, the judge would stop us.

That’s why the Breivik trial seems so strange to the eyes of an English lawyer: because what is being proffered by Breivik does not appear in any legal sense to amount to self-defence. No individual has the right to resort to mass murder to defend his country, as he claimed when he concluded his ludicrous evidence. The court does indeed seem to being used by him as a platform for him to express his twisted views and while it has had the very good sense to impose a broadcast blackout, I cannot imagine that an English court would allow the defendant to give that evidence, or to call the sort of witnesses he plans to call. I hope I never have the occasion to be proved right.

November 2, 2011

The decline and fall of Righthaven

Filed under: Law, Liberty, Media, USA — Tags: , , , , , — Nicholas @ 08:40

Ars Technica has what should be the final legal chapter in the Righthaven saga:

Looks like it’s time to turn out the lights on Righthaven. The US Marshal for the District of Nevada has just been authorized by a federal court to use “reasonable force” to seize $63,720.80 in cash and/or assets from the Las Vegas copyright troll after Righthaven failed to pay a court judgment from August 15.

Righthaven made a national name for itself by suing mostly small-time bloggers and forum posters over the occasional copied newspaper article, initially going so far as to demand that targeted websites turn over their domain names to Righthaven. The several hundred cases went septic on Righthaven, however, once it became clear that Righthaven didn’t own the copyrights over which it was suing. Righthaven, ailing, was soon buffeted by negative court decisions as a result.

[. . .]

The appeals court has refused to act on Righthaven’s request to delay its August judgment further, and the money was due last Friday. When it didn’t show up, Randazza Legal Group went back to the Nevada District Court to request a Writ of Execution to use the court’s enforcers, the US Marshals, to collect the money. The court clerk issued the writ today, and Righthaven’s $34,045.50 judgment has now ballooned to $63,720.80 with all the additional costs and fees from the delay.

I spoke to Marc Randazza this evening, who tells me, “We’re going to enlist the US Marshal in marking sure this court’s order has some meaning.” He looks forward to heading over to Righthaven’s offices as soon as possible. Should Righthaven not have the cash in its bank accounts, the writ allows Randazza to “identify to the US Marshal or his representative assets that are to be seized to satisfy the judgment/order.”

The degree of threat that Righthaven and other lawfare groups posed to bloggers and anyone else who quoted material on the internet was discussed back in May.

September 3, 2011

QotD: The American judicial system

Filed under: Law, Liberty, Media, Quotations — Tags: , , , — Nicholas @ 11:26

Whatever one thinks about Conrad Black’s guilt or innocence, there is no doubt that he has proven his claim that America’s legal deck is stacked in prosecutors’ favour: Even before his conviction, he had to endure a genuinely Kafkaesque ordeal of assets being frozen and seized by the FBI, email and phone lines hacked, backroom deals with sleazy witnesses (David Radler, please call your office), and outrageous leveraging of blunderbuss statutes to generate dozens of charges on the basis of tangential procedural indiscretions. The very institution meant to protect innocent people from this machinery of state — the private legal sector — is an old-boys’ club whose members often seem just as concerned with seven-figure paydays as with keeping clients out of jail. The fact that Mr. Black happens to be a famous person makes the claims more credible because, as the author writes, if all this could happen to Conrad Black, it “could happen to anyone, and often does.”

Jonathan Kay, “Conrad Black and his new book: A man in full pay-back mode”, National Post, 2011-09-03

April 11, 2011

Wormme mashes up Theodore Sturgeon and Frederick Winslow Taylor

Filed under: Bureaucracy, Economics, Education, Government, Media — Tags: , — Nicholas @ 09:46

wormme read an older Atlantic article linked from Instapundit and had this to say:

Via Insty, this is one of the best things I’ve ever read. It eviscerates the myth of management competence the way that Joe Biden destroys the idea of government competence. But let’s take a step back from the specifics of business management. Look at all the other occupations that share management’s main trait.

Because in reality they’re all the same thing.

Here’s some fields in which competence is assumed, all evidence to the contrary: government, law, management, education, economics, scholarship, and all journalistic media.

Notice what they all have in common? As a primary feature?

Jaw flappin’, tongue waggin’, hot air spewin’ talkety talk talk words blah blah blah.

“Them that can, do. Them that can’t, teach.” And manage and report and govern. But you don’t hear that adage anymore, do you? The Talkers have brainwashed people into thinking they’re Doers as well.

I expect this is the thing that actually brings down Western Civilization. The Doers letting the Talkers take over the Doings.

The chin-waggin’ industries want “ex cathedra” status for their every mumble. How do they repay? By finding nothing but fault in the Doers: industries, energy production, “big box” stores, etc., all the way down to the evil of the Happy Meal.

This still wouldn’t have spelled civilization’s doom, had the Talkies remained apart. Journalism in particular is supposed to report on lies and wrongdoing. And they do so with gusto, when investigating Doers. Do you ever see them going after fellow Talkers like that? They’re in cahoots. Total…cahoots.

March 12, 2011

Len Pasquarelli calls for a new leader for the NFL player negotiations

Filed under: Football, USA — Tags: , , — Nicholas @ 14:09

You’d have to say that Len Pasquarelli really isn’t a fan of the current leader of the players’ negotiation efforts:

As the NFL and the group formerly known as the union continue to point fingers, it appears one man was focused on celebrity status more than negotiating. DeMaurice Smith’s predecessor knew how to cut a deal, something Smith could have learned from.

Paraphrasing the old joke about how one might characterize a thousand attorneys buried at the bottom of the ocean floor: What do you call a fast-talkin’ lawyer with a decertified union, no pulpit from which to preach to a congregation and technically no association to executively direct?

A good start.

At the risk of alienating the rank-and-file — and less important, since I wasn’t on the Twitter or fax accounts of assistant executive director/minister of propaganda George Attallah, the NFLPA brass — the Friday afternoon decertification maneuver by the players’ association was the move DeMaurice Smith has had in mind for a long time. And now the fait has met the accompli, and it’s time for the NFLPA to turn to someone who knows how to cut a deal.

We’re not smart enough, or well enough versed in labor law, to have prepared any suggestions. But there has got to be, somewhere, anywhere, a viable alternative to Smith, essentially Elmer Gantry in a business suit and goofy hat. Smith exponentially raised the ante with his incendiary rhetoric, demonizing the league and its owners and their financial statements, declaring the negotiations a war.

Well, on Friday afternoon, he may have won a battle. But in egotistically rejecting a treaty that would have ended the war for another half-dozen years or so, and made his constituents a lot of money, he may have led his mesmerized charges to the brink of football hell.

February 25, 2011

What the large print giveth, the small print taketh away

Filed under: Britain, Law, Technology — Tags: , , — Nicholas @ 09:03

Ever read the fine print of a contract to discover that the actual term of the contract contradicts the claims? Britain’s Office of Fair Trading is looking into this practice:

Companies whose small print changes the basis of consumer deals will face investigation by consumer regulator the Office of Fair Trading (OFT), it has said. According to the OFT, one in five consumers had experienced a contract problem in the last year.

The OFT has set out the criteria it will use to judge whether or not consumer contracts are unfair and should be investigated by it. The crucial factor determining the fairness of contracts will be the consumer’s understanding of what the contract means.

If the small print of terms and conditions alters the contract from what a consumer would understand it to mean from other claims made by a company, that is likely to be harmful and could be unlawful, the OFT said in a paper on unfair contracts.

“Our approach to identifying the potential for harm from a particular contract, before considering whether there is any breach of law, is to assess whether a contract term changes the deal from what consumers understand it to be,” said the OFT’s paper.

“One way in which a contract term can change the deal is where there are surprises buried in the small print,” it said. “Our research found that for 80 per cent of those who had experienced a problem with a consumer contract, the problem came as a surprise.”

February 19, 2011

QotD: “Would Shakespeare Have Survived Today’s Copyright Laws?”

Filed under: Law, Media, Quotations — Tags: , , — Nicholas @ 00:05

Turow, along with Authors Guild executive director Paul Aiken and Authors Guild board member (and apparent Shakespeare expert) James Shapiro, have an op-ed piece in the NY Times that a whole bunch of you have been sending in, in which they assert that Shakespeare might not have been able to survive the web era, because of all of this “piracy.” The argument is quite a bit stretched, but see if you can follow me: because playwrights had physical scarcity, in that they could keep people out of the playhouses unless people paid to enter, it allowed playwrighting to flourish. They call this a “cultural paywall.” Then there’s some sort of bizarre leap about how copyright is really the same thing. It’s not. And, then it leaps to something about how stricter copyright laws are, ipso facto, better. The evidence for this? Shhhh, don’t bother the Authors Guild bosses with logic! And, of course, the inevitable punchline is the idea that Shakespeare wouldn’t have survived in this online era with all this piracy and stuff.

Of course, it’s difficult to think of a worse example than Shakespeare for this argument (and sort of bizarre that Shapiro would sign off on an op-ed that so thoroughly misrepresents Shakespeare). Of course, as most of you know, an awful lot of Shakespeare’s works are copies (sometimes directly) of earlier works. Sometimes they’re derivative, but other times, he copied wholesale from others. So the bigger question might not be if Shakespeare could survive all the file sharing going on today, but whether or not he’d be able to produce any of his classic works, since they’d all be tied up in lawsuits over copyright infringement.

Mike Masnick, “Would Shakespeare Have Survived Today’s Copyright Laws?”, Techdirt, 2011-02-18

April 1, 2010

Also, mandatory sobriety checks for judges, legislators

Filed under: Cancon, Education, Law — Tags: , , , — Nicholas @ 12:11

The Law Society of Upper Canada is planning to do mandatory random drug testing on law students starting this fall:

The move comes in response to requests made by faculty leaders, said Mahamad Accord, director of public relations at the regulatory body. “Why should we accept a lower standard for professional athletes than we do for society’s guardians of the truth?”

Although some professors of law view the move as intruding too far into the personal lives of lawyers and students, others applaud the measure.

“Lawyers play an essential role in society and the impact of drug-addicted lawyers is demonstrable and negative,” according to Professor Shubert at Osgoode Hall. “These changes are long overdue and will have a tangible benefit for legal aid recipients.”

But I’m exaggerating in the title to the post. The guidelines don’t go that far . . . but they probably should. I suspect there’s at least the same level of drug use and alcohol abuse in those selected groups as there is in the general population, even if their chances of detection (and judicial punishment) is demonstrably much lower than “ordinary people”.

March 31, 2010

The product liability crapshoot

Filed under: Law, Tools, USA, Woodworking — Tags: , , — Nicholas @ 08:38

Tales of odd and unpredictable results coming out of product liability court cases are dime-a-dozen. This result is pushing to the limit of illogical: Carlos Osorio vs. One World Technologies Inc. et al.. This is the case where the court awarded the plaintiff $1.5 million because the tool manufacturer hadn’t adopted the newest safety technology, despite the plaintiff’s clear breach of common sense and safe practices in using the tool.

The accident happened on April 19, 2005, and the table saw Osorio was using was a Ryobi BTS 15, which was purchased at Home Depot on Jan. 10, 2005, for $159. At the time of the accident Osorio may have been employed at that company for two months; however, this is not clear, according to a deposition by Phat Vong, who purchased tools for the flooring company Osorio worked for.

Osorio is from Colombia, has a degree in computer science and was installing flooring as he learned English. At the time of the accident, he was trying to make a rip cut on a 2′-long, 2-1/2″-wide by 3/4″-thick piece of oak flooring, according to court records. He was attempting to cut the board “freehand” without the rip fence, according to the documents. Osorio intended to make a cut in a straight line all the way through the board. He had cut only a small portion of the workpiece when it got stuck at the blade. Osorio immediately experienced chattering and felt vibration in the workpiece. He stopped cutting and cleaned the tabletop. He then attempted to make the same cut again but the chattering continued, and he decided to push the board harder. His left hand then slipped into the spinning saw blade, according to court documents.

The saw blade height above the tabletop was set to approximately 3″ — at or near the maximum elevation, and the guarding system was not installed on the saw during the operation, documents state. The table saw was on the floor, Osorio was kneeling on one leg in front of the table saw, and his body was just to the left of the saw blade, according to a motion filed by Osorio’s lawyers.

For those of you who don’t know woodworking tools, a table saw is not something you can casually use in the same way you might use a hand drill or a sander. It’s a stationary tool with a long history of injuring the careless or unwary user: the act of pushing a piece of wood into a rapidly spinning serrated metal blade requires care and attention to avoid injuring yourself or nearby workers.

Carlos Osorio managed to do just about everything to increase the risk of injury. He removed the safety devices that are there specifically to prevent the kind of injury he sustained. He clearly didn’t understand the risks of what he was doing, and he was operating the saw in an unstable position. The only way he could have been in greater danger of injury is if he was intoxicated or blindfolded.

The only reason the saw’s manufacturer was the defendant in this case is the “deep pockets” theory of legal practice: don’t sue the responsible party (in this case, the employer who clearly failed to train Osorio in the safe use of the tool), sue the richest person or organization even peripherally involved in the case.

« Newer Posts

Powered by WordPress