Category Archives: Legal

A brief history of the New Jersey gasoline pumping law in the courts

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The first time I drove into New Jersey by myself, I was quite unaware by the gas station attendant who insisted on pumping my gas. Within a story in the Wall Street Journal about this rare “cultural entitlement” in the United States is a short history of how the law has been upheld in New Jersey courts:

In 1949, the year New Jersey banned them, America had 200 self-service gas stations. Thirteen other states had banned them, too. (Portsmouth, Va., banned attendants on roller skates.) The fear was that unprofessional pumpers would blow themselves up.

Calling the New Jersey law “oppressive,” two dealers sued. They lost. The state’s Supreme Court, upholding the verdict in 1951, declared gasoline inherently “dangerous in use.” In 1988, a judge in a lower court ruled the law unconstitutional. An appeals panel cited the 1951 case and reversed him.

In 2006, then Gov. John Corzine took another shot at the law, proposing a self-service test on the New Jersey Turnpike. He wanted to watch prices drop, as cost-cutters like Mr. Gill say they will. The dealers’ lobby didn’t object. But the public did—so loudly that Mr. Corzine ditched his test before it began.

Fascinating how one state could keep this law on the books long after other places have moved on. Before I had read this article, I had no idea gas pumping could be a constitutional question. At this point, is there anyone who has any interest (and resources) to challenge this in court?

h/t Infrastructurist

They have us by the “face”

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TechCrunch is reporting that Facebook just got one step closer to trademarking the word “face.” While there are a number of technical legal caveats,

[f]or all intents and purposes today’s status update bodes well for Facebook’s hold over “Face” usages in “Telecommunication services, namely, providing online chat rooms and electronic bulletin boards for transmission of messages among computer users in the field of general interest and concerning social and entertainment subject matter, none primarily featuring or relating to motoring or to cars.”

I guess one day it may be difficult to speak of providing “face to face” electronic meetings through an Internet service.  Unless, of course, the entity in question is Facebook.

Copyright law: broken, summarized.

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If you want a 37 minute, highly informative summary (with visuals!) of:
1. the current state of copyright law and
2. what I think is wrong with it and
3. (at least some of) what should be done to fix it,
…then you should check out the address Lawrence Lessig (a Harvard Law professor) made to the World Intellectual Property Organization (WIPO) a few days ago.

Bonus: you won’t incur student loans learning this information (like I did over the last 3 years).
http://www.youtube-nocookie.com/v/L5Texgpm520?fs=1&hl=en_US

Several academics question intellectual property and originality

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Several professors have recently published books questioning accepted ideas about intellectual property. One professor illustrated his approach in a recent “reading” of his new book in front of a bookstore audience:

But they didn’t hear a single word written by Mr. Boon.

Instead, he read from a 1960s sex manual, an Italian cookbook, and Bob Dylan’s memoir, among others. He had grabbed those books, more or less at random, from the store’s shelves an hour before the event. So why not read from the book he actually wrote? “I didn’t see a need to,” says Mr. Boon, an associate professor of English at York University, in Toronto. That’s because, he says, the same concepts could be found elsewhere, albeit in slightly altered form.

Not coincidentally, that’s the case he makes in his book, In Praise of Copying (Harvard University Press). Mr. Boon argues that originality is more complicated than it seems, and that imitation may be the sincerest form of being human. He writes: “I came to recognize that many of the boundaries we have set up between activities we call ‘copying’ and those we call ‘not copying’ are false, and that, objectively, phenomena that involve copying are everywhere around us.”

He read from the cookbook because recipes aren’t protected by copyright law (unless they contain a “substantial literary expression,” according to the U.S. Copyright Office). He read from the memoir because of Dylan’s liberal borrowings from traditional folk music. And he read from the sex manual because, well, sex is all about reproduction, isn’t it?

While these are just a few academics with books on the subject, it does seem to tap into a growing movement (perhaps led by younger generations?) where originality is redefined as putting existing together in new ways, more of a mash-up than original idea. Whether this will catch on with a larger audience or pass legal muster remains to be seen.

But it does raise an interesting question: how many of our thoughts and ideas are original?

The latest foreclosure chapter: lawyers and “robo-signers”

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The Wall Street Journal suggests that one particular lawsuit, begun in 2004, helped bring to light the most recent issue in the American foreclosure saga: the use of “robo-signers” by lending firms. Because of these practices, a number of banks have had to suspend foreclosure proceedings to examine the paperwork more closely:

Lillian and Robert Jackson stopped paying on their home in Jacksonville, Fla., in 2004 when business dropped off at their cleaning company. Eviction might have seemed inevitable when they faced a foreclosure hearing two years later.

But their lawyer, James Kowalksi, had the idea of taking a deposition from the signer of the mortgage papers. When a document processor for GMAC Mortgage admitted she routinely signed such papers without being familiar with details of the loans, she was tagged as one of a species now known as robo-signers.

It was a first step in the growth of a legal sub-specialty called foreclosure defense that has sown confusion and turmoil in the housing market. Lawyers in the field now commonly use a technique more identified with corporate litigation: probing depositions, designed to uncover any lapses in judgment, flaws in a process or wrongdoing. In the 23 states where foreclosures entail a court hearing, the bank may be ordered to pay the homeowner’s legal bill if a lawyer can convince a judge that the bank has submitted false documents, such as affidavits saying employees personally reviewed the details of loans when they didn’t.

Ultimately, lenders argue that this sort of legal proceeding doesn’t keep the resident in their home; they still should be evicted from their homes for failing to pay because this is just a paperwork issue. What remains to be seen is if there is some sort of “smoking gun” case where the bank proceeded with foreclosure when it should not have.

But in the mean time, it appears that there are a number of lawyers who see an opportunity here. And in the court of public opinion, revelations like this don’t help the public image of the lenders.

Foreclosing foreclosure

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Many news outlets are reporting on the escalating foreclosure paperwork mess, and the American Bar Association’s Law Journal has a roundup describing some of the most recent calls for banks to halt foreclosures entirely.

I haven’t had time to dive into the issue extensively, but my grasp of the underlying issues leads to the following two observations:

  1. I’m not sure what the banks–and especially the law firms–were thinking.  Lawyers are paid often-exorbitant amounts of money to dot i’s and cross t’s.  This is precisely what they appear to have failed to do here:  comply with important technicalities.  Why?
  2. None of the long-term fundamentals appear to have changed.  The houses in question will still be foreclosed; the only real question is how long the process will drag out.  That can’t be good for the economic recovery.

Judges: a dying breed?

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According to the reporters over at CNBC, judges are “disappearing” from the workforce:

It seems counterintuitive that we’re increasingly becoming a lawsuit-happy nation and yet, the need for judges is shrinking. The reason is simple: Budget. From the federal government on down to states, cities and towns, cash-strapped governments are slashing their budgets.

This trend is having and will have profound effects on the U.S. legal environmental.  It is true that today most cases settle (civil) or plea bargain (criminal) long before they reach trial, but they do so under the so-called “shadow of the law.”  In other words, litigants choose not to waste time and money fully arguing their cases when the payoff (winning or losing) is not worth the transaction costs of trial (years of litigation, lawyer fees, etc.).

These settlements and plea bargainings are attractive alternatives to full trials, however, only if trials (1) are an actual possibility and (2) it is reasonably certain who will win.  If there are fewer judges, (1) is undermined.  Moreover, if there are fewer trials–resulting in fewer judicial opinions–(2) is undermined insofar as there are precedents to indicate how current controversies will resolve.  In a world with few judges, potential litigants are thus left with a less-attractive reason to settle/bargain:  uncertainty.

A potentially huge penalty for losing, combined with the cost of not knowing, results in a rational decision to resolve the problem quickly.  This is fine to the extent that it lessens legal combativeness.  It is problematic to the degree that it encourages wasteful payments of “go away money” (civil) or guilty pleas to lesser crimes by the innocent (criminal).

Strong copyright enforcement in a corrupt world

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There is an ongoing scholarly debate within U.S. legal circles about just how vigorously copyright violations should be pursued and punished.  In the U.S., this debate often takes the form of whether 6- or 7-figure judgments should be levied against single moms or 20-something grad students who copy music.

In more authoritarian countries, however, the stakes for alleged copyright infringers are often much higher.  Clifford J. Levy over at the New York Times recently posted this interesting piece entitled “Russia Uses Microsoft to Suppress Dissent” highlighting the plight of an environmental group which

fell victim to one of the [Russian] authorities’ newest tactics for quelling dissent: confiscating computers under the pretext of searching for pirated Microsoft software.

Across Russia, the security services have carried out dozens of similar raids against outspoken advocacy groups or opposition newspapers in recent years. Security officials say the inquiries reflect their concern about software piracy, which is rampant in Russia. Yet they rarely if ever carry out raids against advocacy groups or news organizations that back the government.

Such self-serving enforcement will always be a danger in copyright enforcement.  Copyrights protect non-rivalrous goods:  users can duplicate a copyrighted work without disturbing the author’s own enjoyment of the work.  This is in direct contrast to tangible property, which is rivalrous:  if I steal your laptop, I now benefit from your laptop and you suffer from its lack.  Put another way, my theft of a rivalrous good has not created two laptops the way (illegally) copying a non-rivalrous good (say, Windows 7) creates two fully functional copies.

This is not to say, of course, that copyright owners are not harmed when their works are pirated.  Indeed, owners do lose revenue to the extent that, in a parallel universe without the piracy, they might have been paid for the additional copies of their work (assuming the now non-existent pirate prefers to pay the market price rather than simply to go without).  Many scholars argue that copyright exists precisely to allow authors to benefit fully from every copy made of their works.

It is important to remember, however, that such vigorous protection comes at a privacy cost.  If I steal your laptop, a physical act has occurred that leaves you tangibly and noticeably poorer, and the police have something specific (i.e., a laptop) to recover.  If I copy Windows 7, no physical act of theft need occur (perhaps I obtained the first copy from Microsoft legitimately), and the police have nothing concrete to pursue.

As a result, law enforcement is left with two broad strategies when pursuing copyright infringement:  (1) incentivizing whistleblowers and (2) conducting fishing expeditions.  Within the U.S., (1) is encouraged and (2) is usually legally suspect.  In countries with fewer legal protections and more corruption, however, (2) presents a convenient excuse for harassment and intimidation whenever needed.  Robust copyright enforcement in such a context thus comes at an astronomically high privacy cost.

Law professor admires C.S. Lewis’ look at the word “my”

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From the New York Times Freakonomics blog: law professor Ian Ayres comments on C.S. Lewis’ explanation in The Screwtape Letters of “the most property-laden adjective, the possessive “my.”“

German copyright > English copyright?

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Der Spiegel has posted a summary of the work of economic historian Eckhard Höffner (see here for one of Höffner’s presentations).  As Der Spiegel summarizes Höffner’s question, “Did Germany experience rapid industrial expansion in the 19th century due to an absence of copyright law?”  Höffner argues that England’s draconian 19th century copyright laws resulted in a “chronically weak book market that caused England, the colonial power,to fritter away its head start within the span of a century, while the underdeveloped agrarian state of Germany caught up rapidly, becoming an equally developed industrial nation by 1900.”

As Matthew Lasar points out in his analysis for Wired, however, Höffner’s thesis is vulnerable to correlation vs. causation objections.  For one thing, many European countries (and their colonies) had growth outpacing England’s during this time period, and many of these countries also had strong copyright laws.

I find one of Lasar’s other objections to Höffner’s thesis less persuasive:

…when we put all the legal and economic comparisons aside, we have to ask how much the United Kingdom really suffered from its allegedly stultifying copyright rules. Sure, the nation’s economic growth declined compared to Germany and the US, but it certainly turned out some great literature; we’re still talking about the country of Charles Dickens, John Stewart Mill, Jane Austen, Lewis Carroll, and Arthur Conan Doyle.

And don’t forget that this is the nation whose scientists discovered the electron and the precise behavior of heat, explained the nervous system, electromagnetic laws, and the true nature of evolution, and whose inventors pioneered modern steel, the telegraph, the suspension bridge, and (over a century later) the theory of Internet packet switching as it is widely understood today.

I’d be curious to hear what you think.