So Hilden did a pretty good job of finding an academic reason why people might be interested in the Washintonienne story. (See previous post.) But however you dress it up, the fact is people are fascinated by the sordid details of other people's sex lives. I think its because we all pretend to deal with our romantic and sexual matters in a thoughtful and appropriate way, but the common practices are far more twisted, deviant and complicated than anyone in polite society lets on. We have an inkling of this, but we haven't fully accepted or embraced it. Even people who you'd think would know better from their own experience are confused. For example, Cutler thinks she just wants to be a housewife and have polite sex, while she's actually a woman sleeping with 6 men, some of whom are paying her and others of whom are spanking her. She's going to be happy being someone's housewife? Yeah, I don't think so.
In the realm of uncovering the embarrassing truth about the way people think about sex was this great segment on This American Life the other weekend. A young woman was reading from her teenage diary entries written when she was 13. She'd just started public school and was getting decidedly slutty. It was recorded for something called Mortified, which is a reveal-yourself open mike kind of thing. Her rendition of her childhood self was hysterical, but the writing was actually a lot like the Washintonienne excerpts quoted in the lawsuit! I was laughing aloud in the car. Its well worth listening to. Go to This American Life website. Its the June 25th episode.
Jennifer | 6:52 PM
| For privacy advocates:
There's a really interesting lawsuit going on about the disclosure of private information and these kiss and tell blogs. I also like the article by Julie Hilden explaining the law, though Julie looks a little depressed in that picture. She shouldn't be, its a cool article! I particularly like her discussion of whether the plaintiff will be able to prevail on the question of whether there's an "absence of legitimate concern to the public" with respect to the publication. On the one hand, who cares what kind of sex this chick is having with one of Senator DeWine's aides. On the other, Ms. Hilden explains, this is a window into the politics of sexual power in Washington. After comparing and contrasting the author (Cutler) with Monica Lewinsky, Hilden opines:
Cutler's blog, interestingly, isn't just "kiss and tell." Along the way, it reveals the double standard that still applies to, and confuses, so many women. Even as Cutler mulled whether she and Steinbuch might marry (he's Jewish; she isn't), she also worried that their "nasty sex" wasn't appropriate for a married couple. And meanwhile, she had been dating five other men, and taking money from at least one of them!
If the questions of what it means to be a wife, and what it means to be a whore, are political as well as personal questions - and I think they are -- then this blog definitely (if often inadvertently) had something political to say. That, too, may provide a defense Cutler can raise in Steinbuch's suit.
Great analysis. And if you're wondering what's so nasty that married people can't even do it, read the complaint! Who says the law is dull?
Jennifer | 3:52 PM
| Grokster: The Day After
After having had time to reflect, I believe that the Grokster case came out the way it had to, since the theory put forth by the court is so seductive. After all, who would rule that a company that intends to promote copyright infringement and promotes copyright infringement can't be punished because its product might also be used for something else? This seductive theory of liability is also enshrined in the anti-circumvention provisions of the DMCA which prohibit the distribution of tools that the distributor or his agent also markets for use in circumventing a technological measure that effectively controls access to a copyrighted work. 17 USC 1201(a)(2)(C).
But in practice, this decision leads to a lot of uncertainty and risk, much of which will be borne by the independent creator, programmer or inventor. Many non-litigators think intent is hard to prove. After all, how can you know what's in another person's mind? But those who've litigated intent issues before know that its not hard at all, and the determination of ill-intent is often based on slight evidence in addition to the criminal act. Further, the quality and type of that evidence ought to make people nervous; Whether someone has the mark of a "legitimate" inventor or business, or a hacker. Tee-shirt slogans. Books in the workshop. Marketing materials. Slogans. Logos. Product names. Evasive responses when accused of wrong-doing. The Supreme Court even gets it wrong right in the Grokster case. In the very same opinion that says that the design of the product is not evidence of illegal intent if there are substantial non-infringing uses, the court points to the design choices of interoperability and failure to filter as evidence of bad intent. It also doesn't like the "-ster" name. If a judge's (or more likely a jury's) interpretation of what this evidence might say about an inventor's state of mind is difference between today and the next insanely great thing, I think we might have a lot fewer great things.
Jennifer | 3:35 PM
| Ginsberg' concurrence is bad. The evidence was insufficient to demonstrate, beyond genuine debate, a reasonable prospect that substantial or commercially significant noninfringing uses were likely to develop over time. This confuses "substantial" with "commercially significant" and doesn't give enough time for technology to develop out of the early adopter stage into more widespread public use. I wonder if there are studies on answering machines, pagers, cell phones, and who was the primary user when those technologies were first introducted. I have read that it was prostitutes and drug dealers, and I know that having a pager used to be considered part of probable cause to believe that someone detained on the street was dealing. Where would doctors and patients be if we took that early use and imposed liability on the pager companies as a result?
Jennifer | 9:17 AM
| Comments on Souter's majority opinion:
The rule in Sony is not an exception to common law established principles of secondary liability, but merely a statement that no secondary liability lies for distribution of a technology that a company knows will be used for infringment, but is also capable of non-infringing uses. Some questions then are (1) what impact can the design of a technology have on the question of secondary liability and (2) what is sufficient evident of unlawful intent and (3) what does that then mean for the distribution of the technology?
Sony's rule limits imputing culpable intent as a matter of law from the characteristics or uses of a distributed product. But nothing in Sony requires courts to ignore evidence of intent if there is such evidence, and the case was never meant to foreclose rules of fault-based liability derived from the common law. ...Thus, where evidence goes beyond a product's characteristics or the knowledge that it may be put to infringing uses, and shows statements or actions directed to promoting infringement, Sony's staple-article rule will not preclude liability. Thus, advertising an infringing use or instructing how to engage in an infringing use, show an affirmative intent that the product be used to infringe, and a showing that infringement was encouraged overcomes the law's reluctance to find liability when a defendant merely sells a commercial product suitable for some lawful use...
As for the impact of the technological design, the court appears to take pains to say that design should have little or no impact on liability, if capable of substantial non-infringing uses: [M]ere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability. Nor would ordinary acts incident to product
distribution, such as offering customers technical support or product updates, support liability in themselves. The inducement rule, instead, premises liability on purposeful, culpable expression and conduct. Yet, the court cites the design of the technology as evidence of unlawful intent, specifically its compatibility with the Napster network. This might be understandable if Napster was found incapable of substantial non-infringing uses, but it wasn't. The court merely found that Napster also had the ability to police the infringing uses at the point of copying.
Second, the Court includes failure to design and include filtering capabilities as evidence of intent. So this is lip service to technological neutrality, but not actually technologically neutral?
This rule will set up a real training problem for big ISPs and other technology companies, who must now worry that their customer service people will send the form help email in response to questions like, "How to I email this Britney Spears song?" as opposed to "How do I email an attachment?" The Court seems to want to cabin off the run of the mill tech support responses from more "purposeful" or "morally culpable" actions on the part of the distributor. In practice, this will be more difficult to acheive. The opinion cites the few instances where the run of the mill tech support response was sent to people asking for help with infringing files as evidence of unlawful intent.
Jennifer | 9:13 AM
| A link to the opinions in Grokster, Brand X and other cases.
Jennifer | 8:28 AM
| We lost Brand X today and kind of lost Grokster. I can't find the actual opinions on the Supreme Court site yet, so I can't tell how good or how bad the latter ruling is. The news reports say that secondary liability depends on whether a company has criminal intent. So one distributor could have bad intent and be liable for infringement and a second could have legitimate intent and be fine selling the identical technology. It may be that the biggest effect of the case is that we won't see anymore "Rip Mix Burn" advertising, or SBC's "Faster Downloads". Speed and flexibility will go underground, and there will be euphemistic marketing instead. Off to mourn Brand X and wait for the official site to post the opinions, which I'll link to later.
Jennifer | 7:54 AM
| As those of you who know me, or who know someone I know, or who read my blog comments, know, today is my birthday. I take my birthday very seriously, and one of the really nice things about Brad is that he does, too. So, Brad took me to Fifth Floor last night to celebrate. The restaurant is cool looking, especially the zebra rug. The maitre d' wished me a happy birthday, apparently having noted it from when B. made the reservation. Of course, I liked that. The sommolier was unable to make the wine list approachable. It was about 40 pages long, and when he offered help, we asked for a moderately priced pinot noir. He asked whether we wanted foreign or domestic, and Brad informed him that we were patriots. That should have given him a clue as to our decision making methods, but he kept asking us whether we liked a "burgundian style" wine and pointing out bottles which were moderate as to that list, where most of the bottles were over $100, but not as to any kind of outside measure of moderate. As Brad says, the only thing that stops you from ordering the cheapest bottle of wine on the list in that kind of circumstance, is trying to have some shread of dignity in the eyes of the wine guy. After all that, the bottle we got was expensive, subtle, delicious, and did the trick nicely.
The food reminded me of the rain forest in Brazil. There, nothing is just itself. Every plant has 6 other plants growing on top of it. Every bug has three other bugs and a bunch of moss hanging on. Fifth Floor is one of those places where they serve you something that's as big as a mouthful, but it still manages to have 8 ingredients. For example, they brought me a whipped pea mousse with bacon, morel mushrooms, a pea sprout garnish and apricots, decorated with some green oil of some sort as one of those little extra appetizers that makes you feel like you're getting something for free by eating there. The whole thing was as big as Brad's thumb. It was good, no doubt, but there's something fussy about this sort of food. We also were given a cured salmon slice, and two little cups of soup, one avocado with lichee and onion salsa and one porchini mushroom, a box of chocolates and little madeline type cookies with berries baked into them. I ordered the fois gras trio, which was rich and uneven. Brad got a really fine pea soup with lobster. Then I had the lamb, my favorite meat, which was yummy all the way around, especially the salty confit. Brad had the halibut, which was poached in a little clay pot, then served with a beurre blanc like sauce and some kind of braised green. It was simple, clean and delicious tasting. At about midnight, after a chocolate dessert decorated with a chocolate card that read Happy Birthday Jennifer, we limped out of there bleeding cash, sated and tipsy.
Jennifer | 9:45 AM
| There's been lots of news on good animals going bad this week, with three pit bull attacks in two weeks here in the San Francisco area. People have been looking askance at Loki, even. So its worth taking time to note that sometimes bad animals do good.
Jennifer | 1:31 PM
| I took my first scuba diving lesson today. I felt like a combination of Boba Fett with that inflatable jet pack vest, and Darth Vader with the regulator in my mouth. I probably scuba-ed much as they would. Luckily, I don't also have a cape to get in my way. Even though I'm a good swimmer, and very comfortable under water, it's amazing how awkward I am, and also how claustrophobic I felt. When we were practicing clearing our masks of water, I actually felt a little freaked out, sitting on the bottom of the pool, eyes closed (I wear contacts), face and nose full of water, rasping breath in and trying to direct bubbly breath out through my nose. The lessons were a present from my sister for my last birthday, so its well time I use them. I'm eager to swim with the sea otters when I certify in Monterey.
Jennifer | 5:35 PM
| A recent post on a mailing list I'm on cited the following statistics:
According to the U.S. Department of Justice, 1 in 3 girls and 1 in 7 boys are molested before the age of 18. Sixty-seven percent of all reported victims of sexual assault are minors, and 34 percent of those victims are under the age of 12, according to the National Incident-Based Reporting System -- and these figures are considered low.
Could these stats be true? I have always wondered how prevalant supposedly deviant behavior is. When I was a kid, I didn't think that any adults took drugs or read pornography, for example. Later, I learned that such behavior is common, if not rampant. When something is so common, why do we classify it as deviant and then pretend that there's something strange or aberrant about when it happens? We can still regulate the behavior, including criminalizing child molestation, but I would think that the way we deal with a problem would be different if we accepted the truth that its happening all the time.
Which brings me back to the question of whether it is. All of us know someone who was molested as a child. If you're a woman and you talk with your female friends, you probably know more than a few people. Counting back among my friends and aquaintances, I can think of eight right off the top of my head. A neighbor, a law school aquaintance, a co-worker, the older sisters of two different friends... But if I think about what percentage these people are of all the people I know, its actually quite small. Of course, not everyone I know is telling me everything.
Jennifer | 1:59 PM
| Is Internet fame more respectable now? Who do you know who is Internet famous and is it better than real fame? Does Internet fame today help you score with chicks?
Jennifer | 12:05 PM
| At computer security conferences Black Hat and Defcon this year in Las Vegas, I am doing talks on the Top Ten Legal Questions of interest to attendees. My non-scientific polling method is to ask people to send their questions to an email address I set up specifically for this purpose. Strike-back technology, vulnerability disclosure, civil and criminal liability for maintaining insecure computer systems, reverse engineering, the Digital Millennium Copyright Act, trade secret law? What would you be interested in discussing? Email bhdefcon2005talk_at_hotmail_dot_com.
Jennifer | 2:32 PM
| On an airplane to Austin, TX today, I was reading Anthony Lane's review of Revenge of the Sith, which I'm sorry to say I've already seen twice. I was laughing out loud at this particular line:
...I still fail to understand why I should have been expected to waste twenty-five years of my life following the progress of a beeping trash can and a gay, gold-plated Jeeves.
Classic. Even better than his end to the review of Episode One.
Jennifer | 3:25 PM
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