Chronicling the high cost of our legal system
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The remarkable recent advances in make-it-yourself technology are opening up all sorts of new possibilities for users, but also have the potential to freak out the CPSC, FDA, trade agencies and intellectual property lawyers, as well as gun-control advocates. When products extruded from local printers are inevitably involved in injuries, which distant parties can be sued? [Bloomberg]
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As Kenneth Anderson relates, scholars have begun putting quite a bit of thought is going into the question, and many realize that assigning strict liability for accidents to the deep pockets on the scene — manufacturers, designers, programmers and promoters — might not be an optimal safety strategy.
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A two-part post, with part 1 on the law as applied to the facts, and part II on sentencing, prosecutorial discretion, and the appropriate targets for reformist energy. Earlier here (& Greenfield; Timothy Lee and Mike Masnick on plea bargaining).
Rob Beschizza: “While it looks like clueless corporate spite, I bet it’s really about lawyers wanting to lower CBS’s exposure to uncertainty in its boring lawsuit over contracts and copyright. … For some, it seems inconceivable not to accept legal advice after it’s been sought — even when the negative consequences of taking it are profoundly obvious.” [BoingBoing]
Programmer Aaron Swartz, a founder of RSS syndication and Reddit, committed a series of trespasses and hacks at MIT so as to download millions of papers from the JSTOR academic database, possibly with the plan of making them freely available through file sharing. When caught he returned the files and JSTOR did not recommend prosecution. In September Timothy Lee wrote in Ars Technica that while there was no excuse for Swartz’s actions, it was also mystifying that federal prosecutors were going to such lengths to stack up felony counts and legal theories under the CFAA (Computer Fraud and Abuse Act) that could send the popular techie to prison for life. Now Swartz, who is known to have been afflicted by depression, is dead, a suicide at age 26. [Jonathan Blanks, Lawrence Lessig, Glenn Greenwald, Patterico interview with Swartz lawyer Elliot Peters, Scott Greenfield, Orin Kerr (disputing premise that prosecutors overcharged), Timothy Lee/WaPo]
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Though the Ninth Circuit has differed, four federal circuit courts of appeal have read the Computer Fraud and Abuse Act to criminalize unauthorized access to computers even when the breach in question was to overstep contractual terms of service or the access a computer provider intended to furnish. As reported earlier, that leaves open possibilities of private liability or even felony conviction for behavior that in no way resembles hacking. [Mashable]
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The NYT’s Room for Debate airs pros and cons of what could be a significant new area of federal regulation.
Private space pioneer Peter Diamandis, who founded the X Prize Foundation and cofounded Singularity University, from the Wired July issue, interviewed by Ted Greenwald:
Greenwald: Could anything derail us from this path?
Diamandis: Yes: the risk aversion we’ve developed as a society. Lawyers have ubiquitous power. If someone is always to blame, if every time something goes wrong someone has to be punished, people quickly stop taking risks. Without risks, there can’t be breakthroughs. I got this from Internet law expert Jonathan Zittrain: We’ve gone from a society where if something wasn’t prohibited then it was legal to a society where if something isn’t explicitly permitted it’s illegal. In the early days of aviation, you could do anything you wanted as long as it wasn’t illegal. Now the laws are so extensive that they say, “Show me where it’s allowed.”
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Kashmir Hill explains at Forbes:
Strava ‘player’ William “Kim” Flint got so competitive that when he lost his first place rank as “King of the Mountain” for a steep route in Berkeley, California, he raced down the road on his bike at 40 mph to try to reclaim his title. The 41-year-old electrical engineer had to brake suddenly; he flipped over a car and died on the 2010 ride, reports ABC News. Now his family is suing Strava for negligence, alleging that the start-up is responsible for Flint’s death.
More: BerkeleySide.
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Turning governance of the Internet over to the United Nations system [The Hill, Josh Peterson/Daily Caller, more]
P.S. Oh joy: “U.N. could tax U.S.-based Web sites, leaked docs show” [Declan McCullagh and Larry Downes, CNet]
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Many will breathe a sigh of relief following Judge Alex Kozinski’s new opinion for an en banc Ninth Circuit in United States v. Nosal, establishing that (contrary to some fears) the “anti-hacking” provisions of the Computer Fraud and Abuse Act do not penalize broad swaths of computer usage that exceed “authorized” use. A ruling the other way might have criminalized many instances of employee goofing-off as well as common user violations of website terms-of-service. [Orin Kerr, Volokh Conspiracy, Ken at Popehat] Earlier here, here, here, etc.
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Bad enough to be an established software firm and get hit with lawsuits from competitors or patent trolls. But even companies at the early startup stage now face legal attack, and patent law (unlike copyright) assigns liability even if there has been no knowing act of imitation or appropriation, which complicates the task of defense. “Merely asking a patent lawyer to evaluate the case and advise a company on whether it was guilty of infringement could cost a firm tens of thousands of dollars. And a full-blown patent lawsuit could easily carry a price tag in the millions of dollars, with no guarantee of recovering attorney’s fees even if the defendant prevailed.” In practice, some firms like Microsoft whose portfolios amount to “patent thickets” can establish themselves as gatekeepers to the industry. [Timothy Lee, Slate]
And: “New Patent Regs May Inspire More Litigation, Not Less” [Daniel Fisher, Forbes]
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After defense lawyers raised the threat of sanctions, the Astrolabe firm has apologized and promised not to file more suits asserting copyright over information on such questions as when the sun rises and sets in various time zones. The suit had briefly led to the shutdown of a database used in Internet applications worldwide. [EFF, earlier]
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Belated and unsatisfactory lawsuit “relief”? Nothing especially Applelicious about that; it’s more a matter of joining the class-action crowd. [Rebecca Greenfield, Atlantic Wire] More: Ted Frank, Point of Law (who represents objector Marie Gryphon in the case).
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An open-source database described as “the computing world’s principal source of time-zone data” and “the key tool used by everyone to tell the right time globally” was shut down last week because of a lawsuit asserting that it was too dependent on a privately published atlas which was (allegedly) improperly relied on for historic entries. It’s been rebooted now, but the database compilers still face possible personal liability. [Stephen Colebourne, update] Programmer Arthur Olson, incidentally, is no relation.
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Why does Europe generate so few star high-tech firms? Bad labor law is one reason [Brian Palmer, Slate]
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Even for nonpayment of cable bills? “The United Nations has declared Internet access a human right, and disconnecting people from it is against international law.” [Stan Schroeder, Mashable]
More: According to some commenters, what’s going on here is an assertion only of liberty rights (authorities should not block access) and not of affirmative welfare rights to internet access. Accepting this view for the basis of argument, there still arises the question of whether commonly encountered terms of service will now be at risk of being declared contrary to international law; per news coverage, some advocates hope the new initiative will bar closing the accounts of distributors of pirated music etc., and one can readily imagine parallel claims by email spammers, launchers of DDOS attacks and other controversial classes of users.
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Individual liberty, free markets, and peace: the world's premier libertarian think tank. Publishes Cato at Liberty, where I blog on contemporary policy issues.
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