Author: Bruce Boyden


Good IP Surfing to Be Had

Over at the University of Chicago Law Faculty Blog, a collection of luminaries has been commenting all this week on Molly Shaffer Van Houweling’s very interesting paper, The New Servitudes (forthcoming in the Georgetown Law Journal). Lots of good discussion.

Meanwhile, Rebecca Tushnet is live-blogging the Columbia Fair Use conference, which it sounds like was the place for copyright-types to be today. My own recent thoughts on fair use’s role in copyright law, as well as a few random thoughts on plane crashes, are here.


Twombly: Trimming Some of the Possible Worlds

newplanet.jpgOver at Prawfsblawg, Scott Dodson has a post up commenting on the latest judicial decision to attempt to make sense of the Supreme Court’s civil procedure blockbuster last term, Bell Atlantic v. Twombly. Twombly held, seemingly contrary to what courts had been saying for decades, that a complaint must not only provide a short and plain statement of the claim, but must also plead “enough facts to … nudge[ ] their claims across the line from conceivable to plausible.” Although this set off alarm bells among many commenters suggesting that the Supreme Court had just struck notice pleading dead, the Third Circuit, in Phillips v. County of Allegheny, held that Twombly says only that Rule 8(a)(2) means what it says: a plaintiff must provide not only a short and plain statement of the claim, but one “showing that the pleader is entitled to relief.” No plausible facts, no showing. In that case, Twombly would be a non-event.

Scott proposes a different interpretation:

A better reconciliation of “plausibility” and Rule 8 would have returned to the Third Circuit’s initial insight: context matters. In the unique circumstances of antitrust, inferential allegations of conspiracy must contain facts showing the conspiracy was plausible in order to show entitlement to relief. By contrast, in a garden-variety negligence case, for example, plausibility is not required; rather, even a bare averment of “negligently drove” may need no factual elaboration on the question of negligence in order to show entitlement to relief.

These interpretations are both reasonable. But here’s mine, which I suggested to my Civ Pro class when we covered this case a few weeks ago: Twombly rules out low-probability inferences in complaints.

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Twelve Angry Men

12_angry_men.jpgOver at the Volokh Conspiracy, several of the VC bloggers are making interesting comments on the jury deliberation classic, “Twelve Angry Men.”

I have two comments of my own. First, I’ve only read the play, and never seen the movie, but I can’t say I’m a fan. The play struck me as boring, because it is so obviously morally lopsided in favor of the Fonda character. The conflict between the Fonda character and the Cobb character is about as interesting as watching the Patriots play a high school football team. It reminds me of something Thomas Nagel once said, that the egregious violation of human rights is philosophically uninteresting. The idea being that if your intuitions are not pulled in more than one direction, there’s nothing to discuss. “Twelve Angry Men” gives the viewer nothing to think about, unlike, say, “Paths of Glory” (does military justice require individual culpability?) or “The Caine Mutiny” (were the defendants really innocent, in a moral sense?) or “Breaker Morant” (what’s justifiable conduct in a guerrila war?) or “The Verdict” (does the civil justice system work?).

My second comment is actually a question. Were all-male juries still the norm in 1957, when the film was released? That seems awfully late, given that the right of women to vote was adopted in 1920. When did it become abnormal?


Is There a Moral Obligation to Publish?

Lead TypeIn the last couple of weeks NPR and Slate have reported on Vladimir Nabokov’s last, unpublished novel, which is written on index cards that are in the hands of his son, Dmitri. However, Vladimir’s dying request was not that the novel be published, but rather that it be destroyed.

This presents Dmitri with a bit of a dilemma: honoring his father’s request may mean destroying a novel that the world might love to read. Does he have any obligation not to destroy the novel? If not, then the decision should be an easy one. Presumably he has some sort of obligation to abide by his father’s wishes. If there’s no countervailing duty, then his decision is clear.

The question interests me because one prevalent, albeit self-serving, argument for making infringing music, e-book, or other downloads is that the publishers are making it too hard to get legitimate copies. In other words, the publishers have a duty to publish as widely as possible; having violated that duty, the countervailing duty not to infringe is partially offset. The nonpublishing owner has “unclean hands,” as it were, in any infringement case.

I’m skeptical that there is such a duty, but it is situations like Dmitri Nabokov’s that give me pause.

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What Copyright Law and Plane Crashes Have in Common

New Picture (3).bmpAs others have already noted, the Atlantic Monthly is now making its articles available online, including browseable issues going ten years back and select articles through most of the twentieth century. I immediately checked it out to see if one of my favorite Atlantic articles was up, and it is: William Langewiesche’s The Lessons of ValuJet 592. Langewiesche’s article is a captivating look at a classic “system accident,” the 1996 crash of a ValuJet (now AirTran) plane due to the improper loading of unspent oxygen generators in the hold. I highly recommend it.

System accidents are fascinating events that have a sort of Rube Goldberg quality to them. They typically occur in highly complex organizations that have adopted systems and procedures to avoid simple accidents — such as planes flying into each other in mid-air or cargo exploding in flight. The airline industry, nuclear power plants, large modern military forces, NASA, and contractors that build and maintain large structures such as buildings and bridges are all examples of such organizations. Such organizations are complex, with highly detailed procedures that cover every aspect of their endeavors, because they are dealing with tasks that carry with them the possibility of catastrophic damage. These procedures tend to weed out the simple and easily understood accident causes. In the process, however, the very complexity of the organization and the procedures required tax the ability of the human participants to follow them. What sometimes results is accidents that do not stem from a single, obvious cause, but rather from a number of small errors, any one of which would not cause an accident by itself, but which together combine to produce a disaster. In ValuJet 592’s case, for example, confusion among contract workers about “expired” and “expended” generators, between “generators” and “canisters,” about whether caps were required, about what color tags to place on them, and about why they were placed in the shipping department, all led to the accident — which nevertheless still could have been prevented if either the ValuJet receiving clerk or the co-pilot had questioned why they were being loaded aboard the plane. It’s only because every single one of those things went the wrong way that the accident occurred.

One frequent element of a system accident is the way in which humans and machines fail to work together well. Air accident reports often attribute such failures to “pilot error,” but that usually does not capture the whole story. Beginning in the 1970s, accident investigators and aircraft designers started to go beyond a simple notation of “pilot error” and ask if there was anything about the design of the aircraft or the procedures that made such error more likely. In other words, could things have been designed better to handle predictable and likely mistakes? This research is referred to as “human factors” engineering — that is, considering the likely human response to various situations as part of the engineering design. An early example was the response to an Eastern Airlines crash in the Everglades in 1972. While both pilots were trying to figure out if the landing gear indicator light bulb had burned out (itself a waste of pilot resources), one of them accidentally hit the steering wheel, which silently disengaged the autopilot. By the time they figured out the autopilot was off and the plane was in a descent, it was too late. Sure, that was “pilot error,” but it was an entirely predictable one — people accidentally nudge stuff all the time, particularly when they’re focused on some other task. The solution was to add an audible alarm when the autopilot is turned off — e.g., a recorded voice saying “autopilot disengaged.”

Such research applies beyond hazardous environments such as airplanes. Everyday products are often poorly designed to interact with actual humans. Take glass doors in office buildings, one of my favorite examples of where simple design choices can make a task difficult or easy. It’s often not clear from looking at such a door whether it’s supposed to be opened by pulling on it or pushing. This can be cleared up with a simple visual cue: a horizontal bar across the door, or a steel plate on the side of the door, indicates the “push” side. A short vertical bar indicates pull. Other designs, however, may not indicate which is which; indeed, many doors are very poorly designed with “pull” bars that in fact are supposed to be pushed. (Check out the Bad Designs website for lots more examples.)

How does all of this relate to copyright? Copyright law is badly designed to relate to humans. It’s particularly maladapted to apply to the humans that, more and more, need to know what the rules of copyright are: non-lawyer individual consumers.

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Practicing Law, Studying Law, and Teaching Law

I missed the party on interdisciplinary studies last week — see here for links — but it did raise a question that I don’t think was a focus of the discussion, namely, all else being equal, can interdisciplinary scholars teach law school classes just as well as “non-interdisciplinary” hires? If, as Brian Tamanaha claims, more schools are adopting interdisciplinary programs, presumably the character of their faculties will need to reflect that ambition — i.e., they will have to hire more professors who have spent relatively more time studying and relatively less time in practice. Indeed, that balance does not only pertain to schools going interdisciplinary. Larry Solum suggests that in 20 years, law schools might be taught by law Ph.D.’s, who will presumably have less practice experience than today’s non-Ph.D. law faculty. So the question is really one of scholarly credentials versus experience. Will law teaching be better, worse, or unaffected by such a shift, if it occurs?

I’m skeptical of arguments that quickly equate “different from how it is done now” (or, similarly, “different than how it was done when I was younger”) with “worse.” So that’s a danger to avoid. However, as someone who views himself as having both interdisciplinary interests and some practice experience, I feel unusually free of biases here. And at the end of the day, I lean toward “worse.”

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Network News Gives Up

With the Daily Show’s writers on strike, you might think it difficult to get entertaining parodies of the poor state of network newscasts — where “in-depth reports” mean the story is 2 whole minutes long — but that’s not necessarily true. The weekend evening newscasts are becoming a pretty good parody of themselves.

Take this example from last night’s ABC World News Sunday, reporting on disabled sprinter Oscar Pistorius’s efforts to be allowed to compete in the 2008 Olympics. One key question is whether Pistorius’s artificial legs give him an “unfair” advantage over able-bodied runners — “unfair” defined plausibly as due to the use of technology during the race. Certainly Pistorius is using technology, but does that actually give him any advantage? When the New York Times looked at that issue 8 months ago, it actually did a step-by-step analysis of how Pistorius’s artificial lower legs compare to having muscles and feet, concluding that Pistorius has to work harder to achieve the same speed in the same amount of time:


Here’s how ABC News does it.

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Moderating a Panel: A Nightmare

Over at Prawfsblawg, Liz Glazer has a post about the transition new professors experience from anxiety dreams about being a student (the math class you haven’t attended all semester) to anxiety dreams about teaching. Although I have been teaching for several years now in various capacities, I so far have not had an anxiety dream about teaching. (Knock on wood.) But I have had an anxiety dream about moderating a panel. It went like this:

667182_amphitheather.jpgIn the dream, I show up at a conference panel I’m supposed to moderate, only to realize I don’t recognize any of the speakers and I don’t have any information on me about who they are or what the panel is about. It’s five minutes before the panel is supposed to start. I need to figure out a discreet way of finding out the names and bios of each panelist. Someone engages me in conversation before I can get to the podium. Not wanting to give away my panic, I talk nonchalantly. Three minutes. I extract myself from the conversation. Maybe if I just engage the panelists in conversation I’ll see their nametags. But they are busy talking to other people. Two minutes. I manage to get the attention of the first panelist. I ask the panelist to spell his/her name and confirm his/her bio. Time’s up. People are settling in their seats and looking at me. I’m standing at the podium. Boy, I hadn’t realized how well-attended this session would be. I flip through my papers once more, trying to find our panel description, but I’m having trouble focusing on the words. It seems awfully quiet.

Then I wake up.


Can You Sue If a Computer Reads Your E-mail?

hal9000.jpgThanks Dan for the welcome, and I’m excited to be guest-blogging at Concurring Opinions again. I had intended my first post to be a continuation of the discussion Dan and I were having in the comments last week about heightened review for subpoenas to unmask anonymous actors on the internet, but events have overtaken me. Orin Kerr over at the Volokh Conspiracy has put up a post querying whether network-level filtering for copyright-infringing materials would violate the Wiretap Act; Orin appears to believe that it would, at least without consent from every potential sender of material that was scanned. This merges two of my areas of interest, copyright and electronic privacy law.

First of all, the report is a little sketchy, but it looks to me like the topic came up as possibly an off-the-cuff remark or an answer to a question at the CES conference in Las Vegas. It doesn’t appear that anyone is proposing implementing this right away. But the idea seems to be that network intermediaries — either ISPs serving individual subscribers, such as Comcast or Verizon, or perhaps ISPs closer to the Internet backbone, such as Level 3 or Sprint — may be able to use fingerprinting technologies to detect and block copyrighted content transiting the network as a way of preventing infringement.

There might be all sorts of practical problems with this. How would a filter distinguish between authorized and unauthorized downloads, for example? But that’s not what intrigues me right now. The question I want to focus on is, would this violate the Wiretap Act? It’s arguable, but I don’t think it would. I don’t believe an automated scan of communications, where no permanent copy is made, violates the Act.

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And Now a Word from the Oracle of Delphi

Temple at DelphiThanks to the Co-Op crew for inviting me here to guest-blog — I’ve really enjoyed it. I figured I would, but I did discover one thing I was not expecting: my blog posts are loooong. Longer than I would read if I wasn’t writing them myself (which is similar to what I used to tell the students in my Saturday morning Internet Law class back when I was an adjunct: I wouldn’t have signed up for this class when I was in law school!). So thanks to those who read and commented as well.

Having just put up a long post, I don’t want to do another, but I did have one more in me. So instead of writing it out, I’m just going to summarize cryptically: Read the excellent discussion of complexity and the law at Jurisdynamics. Read the fascinating article at Vanity Fair on the confusion at NORAD’s northeast regional headquarters on September 11. Contemplate Roberta Wohlstetter’s classic, Pearl Harbor: Warning and Decision, and Bob Ellickson’s Order Without Law. Think about whether the formation and enforcement of informal norms in a community displays similar properties and behaviors as complex systems, and how the salience of certain events in that community depends more on the conceptual framework the members operate under, than on the content of the formal law. Know thyself. Goo goo g’joob.