Disorderly Content

If you've never experienced total boredom and total fascination at one and the same time, clearly you've never served on a jury. Okay, truth be told, neither have I. But I got to experience jury selection firsthand for the very first time, which is enough boredom/fascination for me to make my claim. It isn't nearly as dramatic as Perry Mason or Matlock made it out, I must say. Granted, the case in question wasn't murder, although it did involve the phrase "deadly weapon". And maybe there would be some surprises and oooh! moments during the actual trial. But I doubt it.

Why, I hear you ask. Well, let me tell you something I never saw on TV drama: by the time the juror questioning was done I (and the rest of the prospective jurors) knew pretty much everything about the case. We knew the charges, we knew who the witnesses would be, we knew what the chief witness was likely to say, we knew that the accused wasn't going to testify. In fact, we knew the defense wasn't going to put on any witnesses at all. And we knew that that defense wasn't questioning what happened, merely what the defendant was thinking when he did what he did. (Do you have to say allegedly if neither side seems to dispute it?) So even though I won't be there for the actual trial, about the only thing that's in question is the verdict. And I know where I'd place my bet on that one.

The other big surprise were the jurors, who either didn't watch much courtroom drama or didn't understand what they were seeing. Some of the questions and comments from the jurors would have been laughable if they weren't so serious. Heck, even then; I was wondering how the judge and the attorneys kept a straight face when one juror explained about a domestic violence incident in her own family that was, as she put it, never persecuted. Which might have been a slip, expect she used that same word twice more within a few minutes. A pretty embarrassing mistake, I'd have thought, but even worse from a schoolteacher. I always thought you were supposed to know more than your students.

Anyway, jury selection took three hours yesterday and another hour and a half this morning, at which point the rest of us were sent on our way with a promise of $15 payment plus .34 a mile for our one day of service. But we only get paid one way; I guess they don't care how we get home. Or if.

Apologies to Jim Croce, although he's past the point of caring. I was just reading a post on one of the Scaper forums about a writer of fan fiction who somehow talked Amazon into carrying her Star Wars fan fiction. From the comments, it's obvious that her literary skills are a match for her legal acumen. And I have no doubt her book won't be available for long, on Amazon or anywhere else.

It's the larger concerns that I find interesting. At least a small contingent of fanfic writers are doing their Chicken Little impression, expecting this woman's stupidity to unleash a plague of lawyers who'll descend on anybody who writes about their favorite genre characters. Personally, I think that's unlikely. While I agree that this book is a stunning example of stupidity, and that if you're going to violate trademark and copyright, Lucas is the worst possible company from which to steal (okay, maybe Disney would be worse -- maybe), I seriously doubt there will be any effect on fanfic writers as a whole. We've seen a lot of rights protection stuff since the birth of the Web, with Paramount going after Trek fansites and the like. But most everybody seems to get the value -- and the lack of harm -- in letting fans get creative. As long as money isn't being made, and as long as there are no claims to ownership of their property, most firms have been willing to live and let live.

But I do have a classic example of just this kind of stupidity from my own career. During the height of the dotcom boom, I went to work for a small startup that was building on-chip acceleration for Java code. They called themselves JEDI Technologies, and assured us all that their lawyers said Lucas wouldn't have a case even if they were to claim trademark for Jedi. JEDI was an acronym, you see; it supposedly stood for Java Embedded Devices for the Internet. (Small problem, though: Java is a Sun Microsystems trademark. And they protect their TMs too. So we couldn't publish that explanation for the acronym, which kind of ruined that argument.)

Anyway, we went along happily for a few months. Right up until the day we announced the company and our product plans: press releases, the website and so on. Within a week we'd received a Cease & Desist letter from Lucas's lawyers. And within a couple of days our lawyers wrote back, saying we weren't violating their trademark. A few days after that came a second letter: they certainly did think it was a trademark violation. And more to the point, they were willing to go to court to test it out. At that point we folded like a cheap card table.

Which demonstrated why both my company's management and their legal advisors were a bunch of morons. Because legally it doesn't matter if you're in the right unless you are willing to defend yourself. And even then, what's the point? Having the JEDI name was fun, but it made very little difference to the success or (eventual) failure of the company. Maybe if you're a consumer product company, where a lawsuit might give you good publicity. (I could just see the Murky News headline: LITTLE JEDI BATTLES THE EMPIRE - IN COURT!)

The lesson is obvious: consider risk and reward. If the risk is high and the reward isn't, why in the world would you bother?

...and fruit flies like a banana. But that's not important now. What is important is that a small matter of time got me a parking ticket today. Which means dealing with municipal government, always a happy prospect.

Here's my sad story. I had a lunch meeting in San Francisco today. So, rather than drive in and have to deal with usurious parking, I decided to use Caltrain. I drove over to the local Mountain View station, found a parking space, noted the number and went over to the parking ticket machines to buy a ticket. Put in the number, paid my $1.50 and then went on to buy a train ticket and wait for my ride into the city.

Returning to Mountain View a few hours later, I was surprised to find a parking citation on my car. And even more surprised to compare the space number on the citation and on my receipt and discover that they matched. What didn't match were the times: the receipt said I bought the ticket at 11:01 and the citation was for 10:22.

Something was clearly wrong. I had indeed arrived before 10:22. So why did the receipt have the wrong time? Simply explained when I went back to the machines: it seems they were off by 45 minutes. I called the people responsible for the machines to report the problem. And I've written up the whole sorry mess for the parking violations people. We'll see if they believe my tale.

A $30 ticket? Woulda been cheaper to park in San Francisco...

Update 01/07: Justice prevails! Today's mail included a letter from the parking powers, exonerating me in the great case of the parking ticket from the future. Nice to know that goodness and rightness can triumph, even if it's only in the small stuff.

An interesting aspect of selling stock photographic images is the legality of taking pictures of someone else's property and then selling them. You get lots and lots of opinions, with complications when a building's owner trademarks their buildings (like the Transamerica Building in San Francisco or the Opera House in Sydney). But even these aren't clearcut, as the Court of Appeals found in a case involving a photographer who sold posters of the Rock & Roll Hall of Fame in Cleveland. The district court gave the museum an injunction against the photographer; the appeals court vacated the order. You can read the decision yourself, which explains that using a structure as a trademark is a complicated business that doesn't necessarily keep others from benefiting from your property. Then again, this was a preliminary injunction and the vacating of same; we don't know how the courts would have ruled in a full trial.

Yeah, I'm getting a headache even as I type...

This morning's Groklaw has an article about a SCO customer who's made the move to Linux. But what's interesting isn't that yet another rat deserts that particular sinking ship. (And if the ship itself is piloted by rats, does that make one less of a rat by jumping ship? But I digress.)

No, what's interesting is the hoops PJ, Groklaw's author, had to go through to bring us the story. You see, she spotted the news on a publication called Investor's Business News. And then she realized that it was actually a Unisys press release that IBN had republished as an article. But despite the fact they didn't write it, IBN claimed copyright ownership.

So PJ went looking for a copy of the release on the Unisys site. And failing that, she went to the PR contact and got a copy of the release so she could include it with her blog. But she (and I) marvel at the chutzpah of anybody who claims ownership of something just because they republish it. And I have to wonder how many people will take such a claim seriously, just because it's in writing. I also wonder whether IBN knows they're full of crap and thought they'd assert their claim anyway.

I've always lived by the maxim, "Never attribute to malice that which can adequately be explained by stupidity." Then I met the Bush Administration. And I realized it's perfectly possible to be both.

Boing Boing points to yet another example of our litigious society gone mad. Point your browser at www.legos.com (you know, those wonderful plastic toys that used to require imagination to use, but now come in kits with specialized parts so you now know exactly what it'll look like even before you begin) and you get a lecture from the firm's lawyers about how you really ought not to call them Legos; they're LEGO bricks, thank you very much.

At least Coca Cola eventually got the message; after years of fighting it, they finally decided that being called Coke wasn't so bad. D'ya think somebody smacked their lawyers with a cluestick?

...and against an even littler gal too!

I refer to Mattel's lawsuit against photographer Tom Forsythe, whose Food Chain Barbie photo series so offended the toymaker that they used their considerable legal might to shut him down. As Mr. Forsythe himself writes, Mattel lost. Big. To the tune of more than $2 million in legal fees for their "unreasonable and frivolous" lawsuit, in the words of the Ninth Circuit Court of Appeals.

Clearly, Mattel never expected the case to go to trial; they couldn't imagine Mr. Forsythe doing anything but roll over and play dead. And even if he felt he had nothing to lose, finding attorneys to take on a multimillion dollar expense with little hope of return should have doomed him from the start. But he fought. And he won. And so do we.

I remember an interview with Supreme Court nominee Robert Bork in which he declared that the First Amendment applied only to political speech; nothing else was intended to be protected, nor should it be. I'm glad Mr. Bork never became one of the Supremes; if he had, the Web might have been stillborn. But others argue that only the government can censor, that free speech rules don't apply in the larger world. And maybe that's true as a matter of law; maybe corporations don't have the kind of absolute censorship power the government has, and uses. But that won't stop them from trying, using their enormous financial resources and connections. Is Mattel's attempt to cut off images that bother them all that different from Disney's efforts to legislate their right to own their characters and images for a thousand lifetimes? Maybe the big difference is that Disney uses lobbyists too.

"I'll have Moronic Lawsuits for $500, Alex." From Groklaw we have quite possibly the most audacious legal action of the modern age. And it's not from one of our fifty litigious States. No, believe it or not, the award goes to a French firm called Transports Schiocchet Excursions, which, according to the Guardian in the UK, has sued ten cleaning women for driving to work instead of using their service. It seems they were given a monopoly on the route in question. And to these guys, and to their attorneys, a monopoly is a monopoly.

(An extra tip of the hat to the Guardian for, at least in my browser, inserting an ad with the on-topic heading, "Are You Paying Too Much For Auto Insurance?")

My head may explode! First I found myself in agreement with Clarence Thomas over the Supreme Court's ruling in the medical marijuana case. Now I read something Hilary Rosen, former attack dog for the RIAA, wrote about the Supe's Grokster decision. And I shake my head over how reasonable and rational she's being:

"But knowing we were right legally really still isn't the same thing as being right in the real world. We had that euphoria with the first Napster decision. I hope my former colleagues remember that. The result was lots of back and forth and leverage hunting on both sides and continued litigation and then a great service shut down to make room for less great services. And more legal victories didn't bring more more market control no matter how many times it was hoped it would."

The rest of the article is here. But what scares me is that these sorts of things come in threes. And I'm afraid of who I'll agree with next. Dubya?

I'm afraid...

I never, ever thought I'd see the day when I would agree with Clarence Thomas over a majority of the Supreme Court. But read the following and see if you aren't just as stunned as I:

"Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything and the Federal Government is no longer one of limited and enumerated powers."

Thanks to Don Marti and his free live nude Linux warez chat blog. Yep, that's what he calls it.

I've just finished skimming the most remarkable, unputdownable and yet enormously tedious legal account I've read in many a year. Hank Mishkoff is a web designer in Plano, Texas, a suburb of Dallas, who ran afoul of a local mall developer over a website he created to celebrate the mall they were building in his neighborhood. Some combination of corporate hubris and overzealous legal counsel got him threatened and then sued over his innocuous website and then again as he documented his legal battles. It's a story of arrogant, greedy, duplicitous and ultimately incompetent lawyers, a cautionary tale for any client who doesn't keep a close eye on their legal representation. And it's a cheer for the little guy who refuses to give up, even when his own best interest and good sense tell him to.

Yeah, I know; I'm shocked too. But it appears to be true: Boing Boing reports on threats made by Creators Syndicate, which foists O'Reilly's newspaper columns on the world, against News Hounds (subtitle: We watch FOX so you don't have to). Their offense: linking to one of O'Reilly's columns. Which isn't a crime, at least according to Professor Lessig and the court's decision in the Ticketmaster case. So, very much like Tom Petty, News Hounds won't back down.

We'll see what Creators does next. Will they go after everybody who's now liking to an O'Reilly article because of their threats? Will they notice my link above? Should I expect a call from their jackbooted minions?

Ah well, it's always nice to be noticed.

Update 03/06: Professor Lessig provides his own take on the story. Which makes me wonder: is this bullying by copyright a new tactic? Or was it ever thus?

Boing Boing has the tale of a freelance photographer who was threatened with arrest in San Francisco for taking pictures inside a MUNI station. The problem is that there's no statute forbidding it. But the transit employees and the local cops so want there to be one, out of some post-9/11 sense that being paranoid makes you safe, that they're acting as if they can invent one.

If I have limited respect for those in authority, stories like this certainly don't help. Fighting bad laws is hard enough; dealing with those who would abridge personal freedom just because they think they can; that just makes life that much harder.

Blogger Karl Wagenfuehr read the appropriate statutes to discover that the punishment for infringing copyright are far harsher than those for stealing physical goods, even if they're a physical representation of exactly the same content. Steal a CD and you face a maximum of a year in jain and a $100,000 fine. Steal the bits and it's a year and $3.4 million, plus lawyer fees for your accuser. Read the details at his website.

Do I have to even ask what's wrong with this picture?