April 2003 Archives

In the last few weeks I've been far too busy to blog or to read blogs, but today I decided to follow up on the issue of the "Super-DMCA" bills floating around in various states including my own, Colorado. I dropped by Ed Felten's Super-DMCA page and found that the Colorado Senate had passed a version of the bill.

I was pleased to find that the Colorado Senate had struck the provisions on "illegal telecommuncations equipment" that threatened to make basic secure communications technologies illegal. However, I then turned the page and found that the anti-circumvention provisions are still around.

The Colorado Senate also added some interesting savings provisions designed to protect "multipurpose devices" with more than limited "commercially significant purpose or use other than as an unlawful access device." The revision also has a paragraph that seems to be intended to make it clear that the legislature does not want anyone to interpret the law to mandate any sort of access protection. I'll have to take a closer look at that later.

But for now, it's back to work for me.

If you happen to know of any really good (by which I mean good to learn from) articles or books on the topic of damages analysis in defective or incomplete construction cases, I'd love to hear from you.

Tomorrow I'll begin working as an associate attorney for a small downtown Denver law firm with a general practice focused on business and notable emphasis on contract, real estate, municipal, and zoning. There will be a lot for me to learn and do, so I expect that the already rather thin blogging going on here will become even more sparse, at least for a while.

Wow, I need to go get another suit... or two... and more shirts... and ties... and more nice-but-not-quite-suit clothes... and all the other things that have been on hold for a while... (after all, the air conditioning is out in the car, and warm weather will be coming soon). I think the first paycheck or two are pretty well accounted for already. If I have time for any shopping, that is!

I'm excited about the job. I know there are a few large learning curves ahead of me, but learning is part of the reward of this work.

Amazon.com sent me an email notice that I could get a $15 rebate on "Quicken Lawyer Home & Small Business Legal Suite 2003."

Heh.

Rory Perry returns after a brief hiatus and says some things that echo some feelings I've had lately:

Whew. No posts to this weblog for nearly two weeks, due to [lots of things going on!] and, I'm afraid, more than a touch of the disaggregating funk: an irritation with newsreaders and weblogs, combined with a sense of unease at all the fertile thoughts and material therein that I cannot fully absorb, or respond to, or even remember.

Ah, I have felt this! The wonders of XML syndication and the efforts of so many make it possible for us to bring lots of ideas and information to our computers and promptly drown ourselves in it. You'll never hear me say that being informed and reflective are bad things in themselves, but -- to use economic terms -- there's an opportunity cost built into the time we spend trying to process all of this information, let alone comment on it or add to it. There are other things we could do with that time, and sometimes those other things will be more worthwhile.

And that's a good thing.

Most people who read this have already heard about the copyright lawsuits that the members of the Recording Industry Association of America have lodged against four college students. FindLaw has made the complaints available here.

Seth Finkelstein points out that the claim of $150,000 in damages per work copied bears no relation to the actual damage that the companies can possibly have suffered. He also accurately mentions that these are "statutory damages." Here's what that means.

The 1976 Copyright Act allows copyright holders to elect to receive "statutory damages" instead of actual damages. For statutory damages, the statute sets out parameters between which the court chooses "a sum... as the court considers just." In these cases, the top line on statutory damages is $150,000 per work copied (not per act of copying). I can't imagine the court granting that kind of damages award for this copying, but the plaintiffs asked for it just because they could. The idea behind this is that since you can't get what you don't ask for, you ask for everything and see what the court will give you.

The statute that applies to money damages for infringement is 17 U.S.C. § 504. For a summary, you can keep reading here.

Well, a lot has happened this week. The U.S. Supreme Court heard oral arguments in the Michigan affirmative action cases, Grutz v. Bollinger and Gratz & Hamacher v. Bollinger. Dahlia Lithwick has her Slate report here, and you can find more on the topic at Howard Bashman's How Appealing.

Ed Felten has created an information center on "Super-DMCA" bills that the MPAA has been pushing in state legislatures. The Colorado bill takes some relatively justifiable regulation of cell phone abuse and adds lots of vague and very overbroad provisions that look like legitimate regulation but potentially render presently legitimate, common, and highly desirable computer security mechanisms illegal. They could also stifle security research. I phoned and wrote to my Colorado Senator on that matter today. I explained my view and concluded that the bill's "only winners are in Hollywood. Its losers are everywhere else." Meanwhile, in other topics, Prof. Felten maintains that the ABA's report on wireless computing is an example of "high-order cluelessness." I haven't read the report, so I'll make no claims... yet.

Meanwhile, the California Supreme Court heard arguments in Intel v. Hamidi, questioning whether Intel could sue Ken Hamidi, a former employee, for sending anti-Intel e-mails to Intel employees' company email accounts. Denise Howell has links to coverage here.

U.S. Court of Appeals Judge Richard Posner spoke on intellectual property topics at the American Bar Association's TechShow conference. Rick Klau took excellent notes -- excellent just like all his other notes on the show. They're at his blog.

The Reporters Committee for the Freedom of the Press has set up a weblog called Behind the Homefront. [via BeSpacific, which you should already be checking regularly.] I haven't given it a close look yet, but it should be interesting.

I'm working on a (paying!) research project right now, so I haven't been a heavy reader of blogs for the last few day, let alone writing one. I'll be around more later in the week. How do lawyers who have to bill time in careful increments manage to blog as often as some do? Wow.