Immunizing Apple Against (Viral) Damages

Today, Apple announced on its tech page that it shipped some iPODs with an unwelcome pest nesting inside.

Apple said [that] . . . less than 1 percent of Video iPods — pocket-sized devices that can play music files and video clips — left its contract manufacturer carrying the virus RavMonE.exe, which affects computers running Microsoft Corp.’s Windows operating system.

‘So far we have seen less than 25 reports concerning this problem. The iPod nano, iPod shuffle and Mac OS X are not affected, and all Video iPods now shipping are virus free,’ the company said on the site.

A few thoughts.

First, it’s always fun to see Apple take a shot against the guys at Redmond. Said Apple:

As you might imagine, we are upset at Windows for not being more hardy against such viruses, and even more upset with ourselves for not catching it.

In standard L&E talk, the question here is who is the cheaper risk avoider of viral infection through portable music devices. There is at least one book on the law and economics of computer security, but I’m not sure how the analysis would play here. Putting liability on Microsoft for viral problems would produce broader social benefits, but might produce solutions that are inelegant. Apple, by contrast, can solve this problem with better monitoring. Which leads me to…

Second, the reference to a “contract manufacturer” suggests that Apple outsourced its software package integration outside of the States. I wonder what kind of policies (failed to) exist to deal with quality control at the contract plant? This issue reminds me of the agency cost problem with outsourcing that concerns George Geis.

Third, in case you were worried, Jobs’ lawyers have tried to immunize the company against this very scenario. According to the contract that Apple sent me with my (now defunct) mini, using iPOD software, my only remedy for software defects is a “refund of the purchase price”. Apple sternly warns that:

“TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL APPLE BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER . . . ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE APPLE SOFTWARE . . . [More confusingly] In no event shall Apple’s total liability to you for all damages . . . exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.”

I think it’s fair to say that clauses like these are likely to be enforced by a small number of judges, but that it seems unlikely that were a virus to do real damage to a user’s computer, Apple woudl easily escape with a refund + $50.00 remedy. Unlike, say, the purchase of ordinary software, end users buying iPODs don’t reasonably expect the product to cause infection – they believe (rightly or wrongly) that the major component they are buying is the hardware. To protect itself from damages, Apple should try to push viral protection to its Microsoft users through iTunes, if that is a technically feasible solution, rather than relying on users to remedy the problem themselves through self-purchased (and additional) software.

[Regular readers will know that I’m mildly obsessed with the economics of iPOD’s disfunctionality. I should disclose that I’ve had my nano for four or so weeks now, and it is working well. I suppose. The last week I haven’t been able to use it because the iMAC died for lack of power. Luckily, I’d bought the extended warranty. That will show you, Mr. Jobs.]

Net Neutrality: Law, Money, and Culture


Bill Moyers enters the fray in the raging legal debate over net neutrality tonight, with a documentary on PBS. The Wu/Yoo debate on the topic gets the central issues on the table: should we permit dominant ISP’s (like Verizon and Comcast) to discriminate among the “bits” on their networks, giving more rapid service to preferred sites? I’ve offered some tentative thoughts on the matter, and these continue in that vein.

The net neutrality battle may offer us a classic efficiency-equity tradeoff. Imagine a world where everything on the internet came to you four times faster, but dominant ISP’s could cut deals with certain sites that made their content come 10 times faster. On many classic economic accounts, that would be Pareto-optimal–everyone’s better off. As some very smart people (like Philip Weiser) have claimed, that differential pricing could finally lead to revenue levels that would remedy the US’s unacceptably slow pace of getting people connected to broadband (and faster) networks.

But on the other hand, what about the competitive disadvantage of those unable to cut the deals? Compare this article reprinted in the Boston Pilot (the Boston Roman Catholic Archdiocese’s official paper) touting net neutrality and this piece from Brookings-AEI disparaging it as a form of “price control.” The economists just tend to miss the cultural importance of media consolidation. That’s what convinced me that the stakes are ultimately a “battle for mindshare” (to use Hannibal Travis’s evocative metaphor), and can’t be cast in simple economic terms.

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Ideas on Sharing Ideas

Last weekend, Seton Hall Law School hosted its first annual Employment and Labor Law Scholars’ Forum. My sense (hopefully not over-influenced by optimism bias, one of the many topics discussed) is that the participants found it to be a great success. Part of this is attributable to the terrific and diverse working papers presented by Elizabeth Emens, Julie Chi-hye Suk, Noah Zatz, and Matthew Bodie. But I think the format and size also worked well. There were fourteen participants (including the authors) who collectively covered the waterfront of the labor and employment law fields. Each author presented for about fifteen minutes, with two commentators giving their thoughts for about ten minutes apiece. This set the stage for what was a terrific informal interchange for about an hour for each paper. Everyone learned a lot, in large part because the conversation began on such a high level, everybody had read the papers in advance, and the size of the group permitted all of us to participate in a meaningful way with each paper. Kudos to our colleague Kathleen Boozang for suggesting this kind of forum as a result of her participation in something similar in the health law area at St. Louis University.

Needless to say, despite the rise of electronic media and the seemingly endless number of ways for members of the academy to share information and ideas, sometimes there is no substitute for getting together to talk about scholarship. And, of course, it can be fun too.

So, I thought perhaps sharing ideas on how to share ideas might be a useful exercise. I am wondering what types of formats – whether characterized as a forum, workshop, roundtable, or conference – others have found to be particularly useful as a presenter, commenter, or participant. I am concerned here just about the beneficial exchange of ideas rather than other ways in which one might benefit from attendance (and I realize there are plenty of the latter). What, in your experience, has worked well? If anyone can speak to the “science” of this, that would also be helpful.


Taking Oral Argument to School

gavel.jpgAs Howard Bashman noted over at HA today, my law school hosted the Superior Court of Pennsylvania today. The Court sat on its normal argument calendar over the course of the day. It is a happening that I understand is much more common today than in the past, but still is pretty neat. I’m hoping to work one case, involving interpretation of a homeowner’s policy, into classroom discussion later this week. [Issue: should “sewer” be read using its plain meaning, or to exclude sewer lines that are within the house, when determining if a blockage in a sewage pipe was specifically excluded from an “all-risks” policy. Or, when is a sewer not a sewer?]

After watching the arguments I thought a bit about why such sessions are ever conducted in courthouses. As I understand it, sessions conducted in front of law school audiences result in much better preparation by the bench and the bar, and have the potential of enriching law student life to boot. This is particularly true for busy state appellate courts that might usually conduct expedited or perfunctory review of the record. So here’s a modest proposal: stop building new appellate courtrooms, and have law schools (in effect) subsidize some of the costs of the court system in return for educational benefits.

Some objections:

1. The observed quality boost results from scarcity. It is possible that making appellate courts (in effect) ride the circuit would produce rapidly diminishing returns in preparation. Familiarity breeds contempt, I’ve heard. But, I doubt the effect will turn up in this context. Instead, I imagine that judges will seek to maximize their reputational gains among an important audience (law students and faculty). That audience is important, even in states that elect their judges, because it results in better clerk applications – especially in the state courts, which today are reputationally opaque at the lower levels. So long as law students and faculty attend the sessions, judges will have significant incentives to improve their performance.

2. Law students would get bored. I agree this is a real problem, here and elsewhere, but I think it is solvable if the appellate arguments were worked into class. Obviously, this would require some cooperation from the bar – providing easy access to the briefs and record, perhaps coming into class a week or two before to talk with students about what they expect – but it might also provide “free” mooting opportunities rarely available outside of high-impact/high-stakes constitutional litigation.

3. It would turn serious disputes into a spectator sport. Anytime you turn a ritualized process into a product that gets sold to an audience at least in part for its entertaining qualities, you risk devaluing that process and making it something it wasn’t. So with appellate judging, which already faces serious pressure to become more accessible and entertaining, as opinions distributed to non-barred audiences. But I think the risk of reshaping argument in frivolous ways is relatively minimal here, because most of the trappings of practice will be retained – most law schools have mock courtrooms where the court can sit, and can provide the accoutrements (leather books, heavy walnut chairs, flags, seals, etc.) that convey the proper symbolic content.

So what do you think? Are “real” appellate courtrooms a luxury we can do without?


One Year and Counting . . .

birthday-candle3.jpgConcurring Opinions recently celebrated its birthday. We started this blog back in October 2005, and we’re now 1 year old — I guess that’s middle-age in blogosphere years. In the past year, we’ve had over 740,000 visitors, and we’re averaging between 2200 to 2400 per day. I’d like to thank all our readers and commenters. I, for one, would not enjoy blogging without readers and commentators — who wants to blog into the blankness of cyberspace and get heard by nobody? So thanks for listening and responding.

The recent Concurring Opinions readership poll reveals that our readers are a diverse and interesting group of people (you can participate here if you haven’t participated already). Thus far, about 340 people have taken the poll. We have nearly 100 law professors and law professor wannabe readers, plus nearly 100 lawyers and law clerks, about 70 law students, over 10 professors from other fields, and many businesspeople, technologists, and people in other professions. And our totally-scientific 100% accurate poll has revealed that 8 Supreme Court Justices are among our readers. I hope they convince that lone holdout Justice to join the ranks of our readers.


The Reincarnation of Expunged Criminal Records

confidential1b.jpgThe New York Times reports:

In 41 states, people accused or convicted of crimes have the legal right to rewrite history. They can have their criminal records expunged, and in theory that means that all traces of their encounters with the justice system will disappear.

But enormous commercial databases are fast undoing the societal bargain of expungement, one that used to give people who had committed minor crimes a clean slate and a fresh start.

Most states seal at least some records of juvenile offenses. Many states also allow adults arrested for or convicted of minor crimes like possessing marijuana, shoplifting or disorderly conduct to ask a judge, sometimes after a certain amount of time has passed without further trouble, to expunge their records. If the judge agrees, the records are destroyed or sealed.

But real expungement is becoming significantly harder to accomplish in the electronic age. Records once held only in paper form by law enforcement agencies, courts and corrections departments are now routinely digitized and sold in bulk to the private sector. Some commercial databases now contain more than 100 million criminal records. They are updated only fitfully, and expunged records now often turn up in criminal background checks ordered by employers and landlords.

This is a major problem with commercial database companies that routinely sweep up information from public records. I think that the solution to this problem is for states making their records available to commercial databrokers to require them to promise that they will delete records when they are expunged and will correct records that initially had errors when a correction is later made to the record. This promise can be required as a condition of granting certain kinds of access (so long as the government isn’t constitutionally required to provide access to its record systems, it can require those seeking records to accept certain conditions in exchange for access). I explain why this approach is constitutional here. Unless something is done about the problem, people will lose the ability to expunge information from their records or to readily fix errors. Private companies are becoming one of the primary distributors of public records, and when they take on this role, they are often thwarting the existing balance the law establishes between privacy and open records.


Law & Literature Resources

book1.bmpThe topic of this week’s research canons series at PrawfsBlawg is law and literature, a field I find of great interest (I have written a few papers about law and literature). If you’re interested in law and literature, you might find my website for the Law & Humanities Institute to contain some useful information.

There are several web pages that may be of interest:

1. General Resources (websites, syllabi, etc.)

2. A List of Literary Works About the Law

3. A Chronological Bibliography of Works About Law & Literature (1982-present)

4. A Bibliography of Law & Literature Scholarship About Particular Writers


YouTube of the Day: Creating Beauty

One of my research interests concerns the relationship between persuasion and fraud, and, in particular, how the digital revolution changes the economic analysis of lying. This ad campaign, which I found through YouTube, is an interesting data point.