ignorantia legis neminem excusat

RIAA getting sued

2003-09-11T18:57:00.000-04:00

A California resident is suing the RIAA, claiming its recently instituted amnesty program for illegal file sharing is fraudulent business practice meant to open consumers up to liability.

Read the CNET.com article here.

Read the complaint here. A copy of the RIAA amnesty affidavit is attached thereto as "Exhibit C."

I think that the underlying accusation is very interesting. California's unfair business practices law has a provision that allows any member of the general public to bring a complaint under it, even if the plaintiff has not suffered any damages. This skirts the usual standing problem. The question here turns on the RIAA's intentions. The affidavit says that the RIAA will not "support or assist" any litigation against the signatory of the affidavit, so long as that person doesn't persist in illegal file sharing. It includes a promise not to share information obtained with third parties. Arguably, there is no fraud here. But if, in fact, the RIAA is really doing this as a way to facilitate future lawsuits carried out by other parties -- recording artists, for example -- then it really would be a fraudulent business practice.

The interesting issue -- and the one I think the litigation will turn on -- is whether a promise by the "RIAA" not to support litigation in any way constrains the ability of the RIAA member companies to carry out their own suits. The RIAA is, after all, an umbrella organization made up of other recording companies. All of the members of the RIAA board represent "leadership" at other record labels. See here. How does the agreement between the "RIAA" and Joe Downloader affect the ability of a record company official who also works with the RIAA to use the information obtained in the affidavit? If it doesn't, and if the RIAA never intended it to, and if the RIAA tred to lure consumers into this agreement with the hopes they could flush out more file sharers to sue, then this program might qualify as a fraudulent practice under the CA statute.

Miranda

2003-09-11T10:21:00.000-04:00

The Supreme Court will soon hear appeals in three cases involving a criminal suspect's right to be informed of his or her rights after an arrest and before the police begin an interrogation, pursuant to Miranda v. Arizona.

Read a CNN article here.

From the article: "'When you read someone their rights, it goes in one ear and out the other,' [Bill] Johnson [of the National Organization of Police Associations] said. 'The words have lost their meaning because they've become so common.'"

What's the solution, then? doing away with Miranda? Or finding a more effective way to inform suspects of their rights? Maybe keeping the police from performing any interrogations before the suspect has a lawyer present?

Way to go, RIAA

2003-09-10T18:44:00.000-04:00

The RIAA recently reached a $2000 settlement with a 12 year old girl over illegal file sharing. The kicker: the family bought software that gave them access to file-sharing servers, which they mistakenly believed gave them the legal right to download music.

What have we learned from this? That the RIAA can bully a 12 year old girl and her gullible, non-tech savvy family into submission. Man, this realy makes me feel more sympathetic towards the recording industry...

Read the article here.

An interesting IP question

2003-09-10T18:34:00.000-04:00

Can you auction a song bought through the iTunes music store on eBay?

Read the article here.

Campaign Finance

2003-09-09T10:25:00.000-04:00

The Supreme Court recently heard arguments regarding the Bipartisan Campaign Reform Act of 2002 (a.k.a. McCain-Feingold), the most recent federal campaign finance reform legislation. At issue is whether the law violates 1st amendment free speech rights by limiting the amount of money that can be donated to political parties (i.e., placing limits on "soft money").

Read the CNN article here. An amusing quote: "'This law intrudes deeply into political life. It goes too far,' said [Ken] Starr, the former independent counsel whose investigation ultimately led to President Clinton's impeachment.'"

Because when it comes to intruding too deeply into political life, Ken Starr is most certainly the authority.

Compilation of current campaign finance law, courtesy of the FEC.

Corporate Welfare

2003-09-05T11:58:00.000-04:00

For those who are interested in the topic the Cato Institute has published a number of studies on the topic of corporate welfare. They are available here. Fiscal policy analyst Steven Slivinski, for example, claims that "If corporate welfare were eliminated tomorrow, the federal government could provide taxpayers with an annual tax cut more than twice as large as the tax rebate checks mailed out in 2001."

The executive summary of his study, titled The Corporate Welfare Budget Bigger than Ever, may be viewed in its entirety here.

Cosmetic fixes finished

2003-09-05T11:45:00.000-04:00

I think all the cosmetic updates to the site have been made.

More on the death penalty

2003-09-05T08:23:00.000-04:00

William Saletan wrote this in a Slate article:

"Joe Scheidler, a well-known anti-abortion activist, complained that Hill had been denied a fair trial because Hill hadn't been allowed to argue that the killings were justified to save lives. "I am not morally opposed to the death penalty," said Scheidler, but 'Hill did something wrong that he thought was right. … It was not malicious in the sense that he was just trying to kill a doctor. He was doing it to save lives.'"

First off, the court probably did not allow the argument because, as a point of law, medical abortion does not constitute lethal force. Therefore, any form of a justification defense based on an attempt to prevent lethal force would have been inappropriate, and never should have reached the trier of fact.

The second point requires a bit of discussion about justification in particular. I am assuming that Scheidler is talking about the subspecies of justification commonly known as self-defense. Lethal force can generally be used to defend third parties from lethal force as well. Assuming medical abortion was lethal force, then Hill would have been justified in using lethal force to prevent the abortions...but only if the use of such force was immediately necessary to prevent the deaths.

The Dr. was killed outside the abortion clinic where he worked. I don't know whether he was entering for the day or leaving, but it doesn't really matter. Not only was the Dr. not in an immediate position to use lethal force against the fetuses of his clients, his murder could not prevent the abortions in the first place, unless he was the only Dr. there and planned to kill every doctor sent as a replacement.

All capital defendants have the right to present a defense. That doesn't mean that they have the right to present a defense that is not recognized by law.

Read the full article here.

Thank god...

2003-09-05T08:18:00.000-04:00

From CNN:

"NEW YORK (CNN) -- A federal judge Thursday threw out a class-action lawsuit by two Bronx teenagers claiming McDonald's used false advertising and that the chain's food made them fat and contributed to their health problems."

Read the whole article here.

Anti-competitive implications of the DMCA

2003-09-04T17:44:00.000-04:00

LawMeme offers the following observations about the Digital Millenium Copyright Act:

"As many critics have noted, the poorly worded DMCA gives a major stick to just about any company that wants to wield it to lock out competitors. The formula is easy: create copyrightable computer program, make use of copyrightable computer program necessary for function of device, add some sort of "protective measure" or handshake necessary before use of copyrightable computer program, instant protection from competition!"

Read the full article here.

Don't get sued for music file sharing

2003-09-04T17:39:00.000-04:00

From the EFF:

"The Recording Industry Association of America (RIAA) announced on June 25, 2003, that it will begin suing users of peer-to-peer (P2P) file-sharing systems within the next few weeks. According to the announcement, the RIAA will be targeting users who upload/share "substantial" amounts of copyrighted music. The RIAA has stated that it will choose who to sue by using software that scans users' publicly available P2P directories and then identifies the ISP of each user. Then, using the Digital Millennium Copyright Act (DMCA), the RIAA will subpoena the ISP for each user's name, address, and other personal information in order to sue that user. "

Read the full article here.

Updates mostly finished

2003-09-04T17:16:00.000-04:00

I've fixed most of the cosmetic things with the blog. As you can see, I figured out how to align the sidebars to the left. Man, it's been a long time since I last worked with html...

Titles

2003-09-04T16:59:00.000-04:00

I can't believe it took me this long to figure out how to do titles...

Update

2003-09-04T16:50:00.000-04:00

I updated the template.

I also added a comment system, thanks to BlogSpeak.

Look for minor cosmetic tweaks. I'd also like to find a way to get the sidebar to align to the left.

Death Penalty, part 2

2003-09-04T10:29:00.000-04:00

Also from CNN:

"A vicious murder, an anonymous psychic tip, a romantic encounter that jeopardized a plea agreement, an allegedly incompetent defense and a death sentence imposed by a purportedly drug-addled judge."

This case is responsible for a Federal Appeals Court overturning 111 death sentences in AZ. The decision to overturn was based on the fact that the AZ death penalty statute allows a judge, rather than a jury, to decide sentence.

Death Penalty

2003-09-04T10:23:00.000-04:00

From CNN:

"STARKE, Florida (AP) -- Paul Hill, a former minister who said he murdered an abortion doctor and his bodyguard to save the lives of unborn babies, was executed Wednesday by injection."

Hill is the first American to be executed as a result of anti-abortion violence.

Read the full article here.

New Semester

2003-08-22T19:23:00.000-04:00

I start classes on Monday. This semester, it's Evidence, Trial Practice, Consumer Bankruptcy, Con Law II, and an independent study. I may be dropping Con Law in favor of Criminal Procedure, thus leaving both Con Law II and my course in Professional Responsibility for the last semester of my last year. Sigh. Procrastination...

Handy Reference for War Crimes Issues

2003-08-05T13:32:00.000-04:00

If you are interested in learning about war crimes, and do not have a legal background, I wholeheartedly recommend this book:

Crimes of War: What the Public Should Know

The book is organized in aplphabetical order, with articles and case studies written by journalists, lawyers and law professors. Some of the thornier concepts are simplified somewhat for public consumption (a fact which is acknowledged in the excellent afterword), but the book is a competent introduction.

Return

2003-08-04T15:08:00.000-04:00

Before I left for the Hague, I posted a message saying I wanted to update regularly.

Well, that didn't work out.

First, I didn't have reliable email access until about a month into the internship. Suffice it to say that, because my department dealt with extremely sensitive information, access to the internet in the office was rather limited. Then, by the time that I got email access at home, I realized that I really couldn't write a lot (or anything) about what I was doing. I was working on an indictment that still hasn't been handed down yet, so I couldn't (still can't) really discuss the details of my case.

But I did some really, really interesting stuff this summer. Now I have to get ready for the start of classes once again.

2003-05-08T08:24:00.000-04:00

I have my last exam today: Business Bankruptcy.

There has been very little time for me to update, what with the studying and the preparing for the trip abroad and all. Hopefully, that will change. Ideally, I will update semi-regularly while in the Hague to talk about the tribunal, as well as other things. A friend of mine who is a librarian has promised to send me a list of legal-related blogs; when I get it I can start putting them in the resources section. Probably they will be more interesting than mine, which up until this point has consisted mostly of me ticking off my small achievements in alw school in a self-absorbed manner. Eh.

I was flipping through the paper the other day and was rather surprised to see an article mentioning a former client of the clinic for which I volunteer. That was a shock. What was even more shocking was the realization that I can't say anything about the details to anyone, because of confidentiality. This is going to be something I wind up having to think about for the rest of my professional life.

2003-05-02T12:20:00.000-04:00

Things I never want to hear from professors for $200, please:

"I think it's a good exam. You will know that you have taken an exam."

Two down, one to go.

My passport is in. Whoo-hoo!

2003-04-22T15:24:00.000-04:00

It's been a while since I've updated, hasn't it? Been very busy. Exams are coming up.

My flight to the Netherlands has been arranged, as have my start dates for my internship. That's good. But there are still a few things I have to do in the meantime, like pack, and register for classes.

More later.

2003-04-13T13:39:00.000-04:00

As of Friday, my note is turned in. Yay! Now I just have to do about 12,000 other things before I leave for the Netherlands.

2003-04-09T14:27:00.000-04:00

My cite-check went disturbingly well today. A semester of paranoia about citation form has, evidently, paid off.

2003-04-07T15:57:00.000-04:00

My note is due on Friday. I C&S it on Wednesday.

Can it be the weekend? Please?

2003-04-07T15:05:00.000-04:00

I just realized that I haven't given translations of the pretentious law Latin on my page. The title of the blog means "ignorance of the law excuses no one" (not "ignorance of the law does not excuse Eminem"). The subtitle means, I am told, "don't let the bastards grind you down."

I have no clue whether or not people know these phrases. Being in law school warps my perception of what people do and do not know about things.

2003-04-07T13:56:00.000-04:00

Is it just me, or does the term "grassroots organization of trust beneficiaries" seem like an oxymoron to you, too?

My Trusts & Estates professor described this organization as such in class today.

2003-04-05T12:43:00.000-05:00

My school's law library recently set up an exhibit purporting to consist of "non-legal" materials relevant to many famous cases that law students know and love. For example, there is a rubber cast of the "hairy hand" from Hawkins v. McGee, the scale that injured Mrs. Pfalsgraf from Pfalsgraf v. Long Island R.R. Co., and the pelt of the fox from Pierson v. Post.

The sad part? It took me until I saw that the envelope from the miscarried letter in Adams v. Lindsell wasn't yellowed with age, as it should be, to realize that the exhibit was an April Fool's joke.

In my own defense, out school's Spring Gala was last night, I am currently operating on about 4 hours of sleep, and am slightly hung-over.

2003-04-02T14:08:00.000-05:00

Added a whole bunch of links. Enjoy. Tomorrow or the next day, I'll get to working on international ones.

2003-04-02T10:45:00.000-05:00

Do I have to go to class today?

2003-04-01T08:46:00.000-05:00

I've been in law school far, far too long.

So, I was watching Boston Public last night (yes, I was supposed to be studying). The premise of last night's episode was that two students who ran an entertainment web site were paying homeless men to fight one another in some bizarre tribute to Fight Club, so that they (the students, not the homeless men) could tape the fight and put it on the aforementioned web site. When one of the homeless men died as a result, the boys were surprised to see themselves looking down the barrel of a murder charge. Ronnie Cook, former-lawyer-turned-teacher-and-now-assistant-principal was hastily called in to represent one of the boys when the judge suggested they obtain separate counsel at the arraignment hearing.

The lawyers tried to get the charge dropped down at a probable cause hearing. Of course, there were obvious legal "mistakes" made. No one, for example, talked about charging the boys with involuntary manslaughter -- which would have been far easier to prove than murder. There was no talk about which grade of murder the boys were charged with (first or second). I think murder one would have really been difficult to sustain, but murder two on a "third prong malice" theory (i.e., they created a plain and strong likelihood of death or GBH) would have been more sustainable.

Whatever. I'm used to watching legal dramas play themselves out on TV and thinking "WTF?" I do it all the time. But the thing that really got me was this: after some preparation, Ms. Cook gave a summation to the judge. The summation primarily consisted of her more or less accusing the system of engaging in selective prosecution because when, say, Fox goes out and defrauds a bunch of women in to thinking they are competing for the affections of a millionaire, they're committing a crime too, darn it (I have to admit, I did think that the Joe Millionaire reference was a nice touch). And when the news hounds the grieving family of a recent murder victim for a statement, then that ought ot be assault. OK, nice try. Your clients were in a basically untenable position, and you had to try to pull out all the stops in the summation to sway the judge. I understand. In a couple of years, I'll probably be in the same position, and I won't be lucky enough to have the rhetorical skills of David E. Kelley as a speech writer.

But the judge dropped the charges to reckless endangerment and conspiracy to commit assault! And on what compelling legal grounds did he reduce those charges? Was it because counsel persuaded him that there was no probable cause to pursue a murder charge? No, because this is television. The judge said that in the context of today's society, where we applaud the news for going out and hounding grieving victims in the name of providing content, he simply couldn't charge two kids with murder for going out and doing something that he -- by implication -- saw as substantially similar conduct.

Did I miss something? Is Connie Chung over in Iraq offering money to families to fight with each other over who gets a humanitarian aid package from the Red Cross? This wasn't news. And it wasn't "reality TV," either. These kids paid a couple of homeless men -- one of whom was an alcoholic -- $100 each to fight one another, with a $50 bonus for drawing blood. Murder might be shaky on these facts. But involuntary manslaughter wouldn't: they took action in the face of a substantial and unjustifiable risk. And more, they created the risk in the first place. They wanted to see blood. You have to hit someone barehanded pretty hard in order to get blood, unless you manage to cause a nosebleed. Still, any situation in which you pay people money to hit each other in the head, especially barehanded, carries with it the known risk that someone could die.

But Fox, with a wink and a nudge, says, "it's OK. Blame your TV." They probably think they're being pretty ironic, and they are. I probably shouldn't be getting so worked up over this, but the fact is that this show had an opportunity to rake the media over the coals for its questionable practices as of late, especially in the areas of news and reality TV. They could have used this example of egregiously bad (and thankfully fictitious) behavior to highlight those practices and point out their potential effects on society (i.e., a culture where spectacle reigns over compassion). Instead, the overwhelming message I received from last night's show was that the context ought to mitigate the punishment for that behavior.

To be completely fair, it seemed like the entire courtroom drama segment of the show was an elaborate setup for the lessons that Ms. Cook learned during the episode: that although she obtained a good result for her clients, she had failed to teach something to her students, and that her place was as a teacher, not a lawyer. So for the sake of the story, the students had to get off lightly (or else the charges had to be dropped entirely). In most other circumstances I would simply recognize this and move on. However, the television industry has been telling us for years that violence in society isn’t the media’s fault. Then, it airs an episode of a show that falls just short of justifying obviously criminal behavior on the ground that the media created a culture in which such conduct was at least partially excusable…because the individuals responsible for the harm were engaged in media-like activities. Fox’s message: if you create a substantial and unjustifiable risk of harm, and that harm occurs, it’s bad. But if you’re doing it to get a story (or even to provide content to subscribers), it isn’t that bad.

Boo, Fox. Boo.

2003-03-27T14:35:00.000-05:00

Hi.

I'm a second year law student at Boston College Law School, in Newton, MA. I write and edit for the BC International and Comparative Law Review, volunteer with a local organization that provides free legal services to the homeless, and in my ever-dwindling free time try to maintain something resembling a real social life. This last part usually gets tossed by the wayside.

I tried something akin to this on livejournal once, specifically intending to document the incredibly brutal fall recruiting process and my search for a job. That didn't work out, because between my classwork, volunteer work, journal work, and part-time job, I just never really had the time to write compelling essays on the recruiting process. So, this time I'm probably just going to write on whatever pops into my head at the moment.

Today, that's going to be my summer job. I have quite possibly landed the best summer job in the world. This summer, I'm going to the Netherlands to prosecute war criminals. I have an internship with the Office of the Prosecutor for the International Criminal Tribunal for the Former Yugoslavia (man, that's a mouthful). For someone interested in international humanitarian law, like myself (both papers I've done for the journal so far have been on the subject), this is probably the Holy Grail.

I'm just blowing my own horn. No real capacity for trenchant insights today.