Monthly Archive for November, 2010Page 2 of 5

Porn Industry Suing File Sharers – Does this Raise Privacy Issues?

File-sharing has been around for years, allowing the transfer of music, movies, software, and just about anything else that can be digitized, to and from all corners of the Internet, for free. The fact that downloading copyrighted material from any source, without the copyright owner’s permission, is completely illegal seems to be of little concern, as millions of people around the world download and share copyrighted material every day. This has made a lot of content-owners very unhappy.

The nature of the newest player in this dispute, however, raises some serious concerns: the pornography industry has begun to sue file-sharers (also reported here).

In the early days of file-sharing, services like Napster were directly sued by content owners (in that case, the RIAA), and courts ordered them to shut down. However, this became completely ineffective when new file-sharing protocols, like Bittorrent, arrived on the scene. Bittorrent, and similar services, are completely decentralized. Unlike Napster, which used central servers that could simply be turned off, Bittorrent works by directly linking computers that are connected to the Internet.

With no centralized entity to shut down or (more importantly) sue, content owners have had to adopt a new legal strategy when it comes to protecting their rights: suing individual file-sharers directly. They do this by obtaining the IP addresses of file-sharers (quite easy, with just a little bit of technical knowledge), and file lawsuits naming the IP addresses as “Doe” (currently anonymous) defendants. Once the suit is filed, they subpoena the internet service providers for the identities of the users behind the ISPs named in the lawsuit. Once this happens, they send a letter to each user, offering to “settle” for a fairly hefty sum – typically $1,000 to $2,000. The letter warns that if they decline, they will be sued for a much, much larger sum.

Almost every person who’s gotten one of these letters over the last several years decided to pony up. For the few people who decide to fight these lawsuits, things tend not to go very well.

While I’m all for content owners protecting their intellectual property rights, I see an inherent ethical problem in this litigation strategy: when plaintiffs in these cases cast such a wide net, it’s almost certain that at least a few innocent people will get caught in the dragnet. And when these individuals receive harshly-worded letters demanding a “settlement,” they might decide that they have no legal recourse (the cost of defending a lawsuit, even if successful, is far greater than the amount of money demanded), and just pay up. This amounts to little more than a shakedown.

However, when the plaintiff is in the porn industry, and suing over the piracy of a copyrighted adult film, this adds another layer of protection. I should note that, as far as copyright law is concerned, there’s nothing inherent in pornography that distinguishes it from any other work: like any other creative work, it’s perfectly copyrightable, regardless of its artistic merit or social worth (if it even has any whatsoever).

But in addition to the threat of a costly lawsuit, and six-figure judgment, these “settlement offers” contain an implicit threat that may be far worse than any financial damage: the threat that a person’s porn-viewing habits will be aired in court, for the world to see.

The Supreme Court has long held that, implicit in the freedoms secured in the Bill of Rights, is a constitutional right to privacy, many state constitutions explicitly recognize rights to privacy, and virtually every state allows a private party to sue another private party for invasion of privacy, and a reasonable person would consider airing facts like this to the public to be a major invasion of privacy.

Furthermore, everyone has a right to defend themselves in a civil lawsuit. In cases like this, however, the vast majority choose to settle, simply because the cost of defending a lawsuit (let alone defending a lawsuit, and then losing) is usually prohibitive. It’s certainly a defendant’s right to accept a settlement offer in lieu of a costly trial.

Basically, these defendants are being threatened with the violation of one right (privacy) if they choose to exercise another right (defending themselves in a lawsuit).

Is there a solution to this problem? As I said, it’s not as if copyright owners don’t have a right to pursue legal remedies for infringement of their intellectual property rights, and this tactic (mass lawsuits against file-sharers demanding quick settlements) has proven to be quite lucrative, even if it doesn’t do much to deter file-sharing. Perhaps that’s the problem.

A civil lawsuit, whether it’s for copyright infringement or a car accident, is supposed to be about rectifying a quantifiable wrong with money paid by the wrongdoer. In the case of copyright infringement, the harm done to the copyright holder could presumably be measured in sales lost as a result of the infringement (assuming that every pirated copy of a work that’s downloaded would have otherwise been obtained by lawful means). However, Copyright law in the U.S. allows copyright holders to seek statutory damages of tens of thousands of dollars per infringement, regardless of the actual harm.

This system gives copyright holders a lot of leverage to demand comparatively-modest “settlements” of $1,500 or so. When you add the threat of public embarrassment, you’ve got even more leverage. Perhaps the playing field would be much more even, and shakedowns like this far less attractive, if Congress would slash the amount of statutory damages available in copyright lawsuits, thereby tying damage awards far more closely to the actual harm suffered by plaintiffs.

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Shouldn’t a Mazda Seatbelt Lawsuit be Allowed to go Forward?

Faulty cars have been making all the news lately. Toyotas, especially, have been at the forefront of all this backlash for some time now. Just this morning I saw yet another article about how officials are blaming a faulty Toyota as the reason behind a fatal car crash.

So imagine if one of your loved ones was involved in an accident in one of these allegedly faulty cars. Further imagine that after the accident, you were not even allowed to bring a lawsuit against the car manufacturer because your claim was somehow “pre-empted.” While this is not happening with Toyota accidents (thank goodness), it’s exactly the case of what’s happening to one family whose loved one was killed in a 1993 Mazda minivan.

Apparently the passenger who was killed in this accident was sitting in the rear seat and was wearing a “lap-only” seatbelt. Family members are alleging that if the passenger had been wearing a “shoulder-and-lap” seatbelt instead, this death could have been prevented. I’m not an expert on all the scientific workings behind seatbelts, but from the face of this description, it seems like the family has made a legitimate claim and should be able to proceed with a lawsuit.

However, the Supreme Court is divided on whether to even allow this lawsuit to proceed because it’s allegedly pre-empted by federal law. The thinking goes that at the time the Mazda was made, federal law did not require car makers to install shoulder-and-lap seatbelts; a lap-only seatbelt was all the law required. (As a side note, this is no longer the law. Starting in September 2007 most passenger vehicles are required to have shoulder-and-lap seatbelts for rear seats).

Anyway, going back to the argument, family members and consumers understandably made the next logical point, which is that, just because Mazda complied with the federal law doesn’t mean that they’re immune from future lawsuits. However, Mazda is contending that federal regulators at the time knew exactly what they were doing when they enacted the law. Federal regulators had expressly considered the option of requiring shoulder-and-lap seatbelts, and had deliberately rejected that option for economical reasons. Thus, the federal regulators’ stance on seatbelt regulations back then was conclusive, and they had made it clear car makers were not to be sued for anything but failing to provide lap-only seatbelts.

So, the Supreme Court appears to be divided over this issue, and it will be interesting to see which way they eventually decide. Ultimately, the disposition of the case will probably turn on whether they really think the federal regulators had meant to make the law conclusive, in terms of exactly what kind of seatbelts were required. Or, if the federal regulators had only meant to set a minimum, rather than conclusive standard, on the type of seatbelts required.

Personally, I think that it’s kind of a pointless exercise to go about deciding the outcome of the case this way. I mean, courts can conduct all the research they want into the legislative history, but will they ever really be able to know what federal regulators were thinking at the time they enacted federal law? Even if they could find an answer to this, what’s the point of knowing what federal regulators were thinking anyway?

I mean, isn’t the issue really…what was Mazda thinking when they decided to forego the shoulder-and-lap seatbelts. For example, did Mazda think this was just an easy way to save on costs, and blindly look the other way in terms of consumer safety? Or did Mazda assess the situation, and come to their decision only after accurately concluding that shoulder-and-lap seatbelts were not necessarily more safe, economical, or practical to implement?

Of course, we’ll never get to explore these questions if the Supreme Court ultimately decides to not even let this lawsuit go forward based on pre-emption grounds. However, because it’s the Supreme Court deciding this case, they’re actually not bound to follow the law on pre-emption as strictly as other courts have to. They can instead choose to decide this case based on other factors, such as what’s best for public policy.

To me, this makes much more sense, because like I said before, who really knows (and cares) what federal regulators were thinking back then. But given public policy reasons, I believe it would be a good idea to let this lawsuit go forward. For example, allowing this lawsuit to go forward would give car makers more incentive to devise safer vehicles. Car makers would not be complacent with just meeting the minimum standards of safety by law, but would be more pro-active in considering consumer safety first.

However, I’m not the Supreme Court, and this case is obviously not for me to decide. It just seems ridiculous to me though, as a common observer, that a family whose loved one died in a car accident cannot even be allowed to bring a lawsuit against the car maker. I’m not saying the family is entitled to win by any means, but they should at least be able to have their day in court.

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Do The New, Tougher Airport Security Measures Violate Any Laws?

If you’ve been reading the news this past week, you’ve probably stumbled across the news that the Transportation Security Administration (TSA) has started implementing more aggressive airport screening measures. If you hadn’t heard about this news yet (well, you know now), then you’re probably likely to encounter them sometime during your holiday travels as well.

Basically, in an effort to tighten airplane security, the TSA has started implementing two measures. The first measure is a sophisticated x-ray machine that all passengers must walk through. This machine uses very low doses of x-rays (as the TSA claims), and scans the passenger’s front and backside. The end result is a virtually “naked” image of the passenger.

The second measure allows TSA personnel to use more aggressive pat-down searches. Under the new guidelines, TSA agents may use their hands to touch the passenger’s genitalia and breasts in order to perform more detailed searches. These searches are required if the passenger opts not to go through the new “full-body” x-ray machine, sets off a metal detector, or if the machine detects suspicious activity.

In defense of these searches, the TSA says that these searches are performed by agents that are of the same gender as the passenger. Additionally, the searches are meant to be as effective as the full-body scanning machines, which is why they need to be as invasive as they are.

All of this has understandably prompted a large amount of outcry and debate by the American public. Most people find themselves on one side of the divide or the other. Those in favor of the new procedures say that these measures are worth it in order to ensure airplane safety. In addition, the TSA claims that it stores none of the images on the full-body scanning machine, thus helping to reduce privacy concerns.

Those opposed to the measures give a variety of reasons, the largest of them being that this is an invasion of privacy. Additionally, passengers are not thrilled about the longer wait lines that these measures will bring. (One article predicts that it will take up to five minutes for each passenger to go through the machine and be cleared). Other passengers are also wary about long-term radiation exposure from these x-ray machines.

Not surprisingly, several prominent people are calling for an end to these measures. This includes the ACLU and pilot Chesley “Sully” Sullenberger. But what exactly are the laws and rights associated with airport security?

1. Aviation and Transportation Security Act of 2001

The Aviation and Transportation Security Act of 2001 was enacted by Congress after the September 11, 2001 attacks, and created what we now know as the TSA. Before this Act, it was the responsibility of airline companies to deal with airport security. After this Act, power and responsibility was given to the TSA. It is under this Act that the TSA has now promulgated these new measures.

However, the TSA’s power under this Act is limited. For example, the TSA’s responsibility is to protect passengers against criminal violence or aircraft piracy. This means that they must check passengers for evidence of weapons or explosives. But, it is overstepping their bounds to check for regular criminal activity afoot, such as theft or drug importation.

2. Fourth Amendment protection against unreasonable searches and seizures

The 4th amendment is often cited in airport security cases. Basically, it guarantees people against unreasonable searches and seizures by the government. If the government is going to engage in such activity, it must have probable cause and must have obtained a warrant to do so

Early court decisions in the 1970’s established that airport searches did fall under the 4th amendment’s protection, as actions by airport search agents still constituted government action. However, courts still allowed airport searches to go on, despite the lack of individualized probable cause and warrant, by creating exceptions to the 4th amendment.

One of them was the Administrative Search Exception, which applies to searches made under a general regulatory scheme to further an “urgent federal interest.” Thus, airport searches to protect against terrorism and bomb threats clearly meet this requirement, and are exempt from the strict requirements of the 4th amendment. However, the searches must still be carried out in a reasonable fashion and with the minimum amount of intrusion necessary. It is on this last point that passengers opposing the new procedures may have the most compelling arguments.

To me, it doesn’t seem like the TSA has blatantly overstepped its boundaries in either of these new measures. However, courts can always decide otherwise, and lawyers can certainly give the TSA a good run for its money. In the meantime, I’m just hoping that the TSA hasn’t gone around to implementing one of these machines at my local airport yet.

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Analyzing Negligent Liability Through E. Coli laced Cheese

Chief among my many, many odd pastimes is trolling the FDA’s website for product recall announcements.  I don’t do this for any pecuniary reason, rather I just like to read and get outraged over how companies can continue to try and cut corners simply to make a few extra bucks.  And then revel over the irony that the subsequent recall is probably costing them a lot more money in lawsuits and lost product sales.  Also, I’m friends with a number of hypochondriacs and I like to tell them that the cheese they just bought might give them E. coli.

Granted, not all companies who have to recall products end up in their situation out of greed.  Sometimes it can be something as simple as an honest processing mistake that goes unchecked and ends up multiplying many times over.  The Bravo Farms and Costco case I linked to above could very well be one of these situations.  However, even if it is, it likely won’t do anything to help stem the resulting outbreak of negligent liability lawsuits that will inevitably follow in the aftermath.  People will be lining up to sue the manufacturer of the recalled cheese, Bravo Farms.  But what about the retailer, Costco?  Well, they won’t be free from liability either.

Tort lawsuits based on negligent liability work under the principle of duty; specifically who has a duty and whether they breached it.  Suing under negligent liability essentially means that the plaintiff is claiming that because of the defendant’s carelessness, the plaintiff was harmed.  In order to successfully sue anyone for being negligent, the following five elements must be shown to have existed: Duty, breach of duty, cause, cause-in-fact, and damages.

I know – I just threw a lot of legalese at you; but really, negligent liability lawsuits are a lot simpler than they might sound.  Rather, explaining the legal principles behind them is simple – it’s proving and winning or defending against one that is very complex and expensive.

Anyway, back to point at hand.  Duty or duty of care basically means whether the alleged negligent perpetrator had a responsibility to the victim.  Breaching of duty means that the perpetrator failed to prevent the wrong which caused the victim to be harmed.  However, the cause must have been “cause-in-fact” by the perpetrator, meaning that it had to have been a type of harm that was an objectively foreseeable consequence to the perpetrator.  Finally, the victim must have suffered some sort of monetary, physical, and/or emotional damage from the perpetrator’s negligence.

Where it can get confusing/ridiculous/infuriating is when one realizes that under this seemingly sound legal doctrine, negligent liability can be imposed for almost anything.

As you can probably tell from my explanation, it seems pretty clear that Bravo Farms can be sued.  They produced the cheese and therefore had a duty to their customers to create a sanitary and safe product.  But they failed to do so by allowing E. coli-infected products to be sold and eaten which could cause customers to become sick.  This is not only a foreseeable consequence, but if anyone eats it, will probably be damaged in terms of monetary loss from medical bills and loss work, not to mention the physical and mental toll E. coli can have on a person.

But what about Costco? Why would they be liable? After all they just sold the product that Bravo Farms produce?

Well, that’s exactly why Costco can be held liable.  As a retailer of consumable goods, it can be argued that Costco had a duty to its customers to ensure that the products they listed for sale are safe.  Though one could argue that there’s no way for Costco to have known the cheese was tainted, an equally convincing argument could be made that if a company plans to resell another’s product, than that company should take steps to not only understand the product, but ensure that it is safe.

A lawyer would probably say that Costco had a duty to utilize some kind of screening safeguard to check safety of each food product that came in or even conferred with Bravo Farms itself.  Now you might be thinking that Costco couldn’t have known that something was up because Bravo Farms didn’t tell them, and that alone should make Bravo Farms entirely liable to Costco.  Well, you’d probably be right; Costco might have a negligent liability cross claim against Bravo Farms, too, depending on the contract between them.

However, ultimately the lawsuits will probably just be limited to customers suing Bravo Farms and Costco.  A lawsuit between the companies is probably unlikely since, barring some horrible media firestorm against the companies, Costco really has no reason to sour its relationship with a major product provider.  They’re a business after all and don’t make their money from lawsuits, but rather from selling things like uncomfortably large packs of toilet paper.

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Straight Couple Suing for Right to Enter Civil Unions

A straight couple in the UK is suing the government for the right to enter into a civil union, which the government of the UK reserves for same-sex couples. Much like some U.S. states, civil unions in the UK apparently provide most or all of the rights and responsibilities to same-sex couples that marriage provides to opposite-sex couples. And, like most U.S. states that have them, civil unions in the UK are exclusively reserved to same-sex couples.

If a case like this comes up in a U.S. state with a similar arrangement to the UK (California being the big one), which seems inevitable, it’s certain to raise some thorny constitutional issues, especially if the Supreme Court, in the interim, makes a definitive finding that sexual orientation is a “suspect classification” – making discrimination based on sexual orientation by the government nearly impossible.

So, why would a straight couple want to enter a civil union instead of a marriage? Well, there are many reasons. First of all, in the Western world, “marriage” is a term loaded with religious implications. 2 people who love each other, and happen to be atheists or agnostics, might not want to convey any impression that they’re seeking religious validation for their relationship.

Or perhaps they have already made some public commitment to one another before friends and family, and simply want the legal security that comes with a marriage, without all the pomp and formality associated with it. So, naturally, they seek out an arrangement that, in theory, provides this.

In the U.S., the vast majority of states do not have same-sex marriage. There are only 6 jurisdictions in the U.S. that do: Massachusetts, New Hampshire, Vermont, Iowa, Connecticut, and the District of Columbia. A larger number of states (though still a fairly small minority) offer some form of “civil union” or “domestic partnership” – the terminology varies between the states – which offer most, and in some cases all, of the rights and responsibilities of marriage, while going by a different name. Most of these states reserve civil unions for same-sex couples, and opposite-sex couples above a certain age (usually 60 or 65).

As far as I can tell, no straight couple in the U.S. has yet sued for the right to enter a civil union as opposed to a marriage. However, it seems like it’s going to happen sooner or later. When this happens, the case will raise some irresistibly interesting legal and policy issues.

First, of course, is the issue of equal protection under the law, which the 14th Amendment explicitly requires states to provide to all citizens. Furthermore, such a case might attract supporters along a wider segment of the political spectrum. While most people who identify as liberals oppose any government discrimination based on sexual orientation, it’s typically discussed in the context of discrimination against homosexuals. However, on a purely intellectual (though, admittedly, not emotional) level, discrimination against heterosexuals in the same basis should be just as offensive to them.

Also, conservatives tend to get really rankled about “reverse discrimination” (a term I really don’t like, but that’s a topic for another post), and “special privileges” for minority groups. I’ve never heard an explanation about how equal treatment under the law is a “special privilege,” but that’s how a lot of people view marriage equality, for whatever reason.

The extent to which I believe either of these positions have merit is irrelevant here. What matters is that, in the U.S., a lawsuit like this would probably garner support from liberals and conservatives alike.

However, there’s a big “unless” there: a straight couple in the U.S. could conceivably argue that marriage, in the Western world, has an inherently religious underpinning, and that for states to sanction marriage (as opposed to a purely civil arrangement) is a violation of the Establishment Clause of the First Amendment. It would actually be a serious argument that marriage itself is unconstitutional. That’s a pretty out-there position, and will turn lots of people off. Unlike allowing more people to marry, this really would be a direct “assault on the institution marriage” that the Religious Right loves to howl about.

Obviously, anyone who wants to bring a similar lawsuit in the U.S. (which, as I mentioned earlier, seems inevitable), will have to tread lightly. Marriage-like benefits for same-sex couples are already controversial in the U.S., and this would definitely throw another wrinkle into the controversy, and how the public and the various policy players would respond is unpredictable.

However, if a straight couple in the U.S. is successful, it could conceivably pave the way for greater marriage equality. Only time will tell.

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