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  • Jun 19th, 2017 @ 1:42pm

    Re: Re: Re: Re: Obvious Question

    Your definition of "common law" is true for basically every system of law that has judges.

    In almost any legal system, the judge determines the "meaning" of the law. It doesn't matter whether it's common or civil law, once the law gets to the judge, the judge uses his or her judgment to decide what the law covers or doesn't.

    Whoever has the last word regarding "what the law is" is the "legal god" in your parlance, be it a judge or a panel of judges or a legislature or whatever. They have the power to be wrong or petty or autocratic and there is nothing but difficult-to-employ governmental process to countermand them. Whatever system you have in mind to replace "common law" is subject to the same flaw, either because the judge does the same basic things, or because whoever replaces the judge - legislature, autocrat, panel of philosophers, etc. - will have similar ability and incentives to bias the law to favor their own power.

  • Jun 19th, 2017 @ 12:38pm

    Re: Re: Obvious Question

    That's not a good definition of "common law."

    The U.S. (except some Louisiana courts) is a common law jurisdiction, meaning cases have precedential value. The alternative, the ex-U.K. European "civil law," in theory gives the text more value than its interpretation, but in function just means that in the absence of an on-point statute, the court can't reason from analagous principles. Whether that's good or bad is a political philosophy question.

    For what it's worth, civil law jurisdictions are more likely to be socialistic bureaucracies than common law jurisdictions, so it's not like one style is more "liberating" than another.

    Anyway, there are limits to the power of common law judges, but the power of judges to issue contempt sanctions to control their own courtrooms and cases is pretty significant, and has been acknowledged as such for quite some time.

  • Jun 19th, 2017 @ 8:54am

    Re: Obvious Question

    Maximum time for contempt is jurisdiction-specific. My brief Googling on the subject says that Florida has no statutory limits; only procedural ones as contempt is an issue wholly defined by the courts themselves.

    There have been federal prosecutions where a reluctant witness (not even the accused) is jailed essentially indefinitely for contempt until he/she chooses to testify.

    And contempt's a separate offense from the main charge. If you're arrested for a crime you didn't commit, and you mouth off to the judge, your penalty for disrupting the courtroom doesn't get refunded because you shouldn't have been in court in the first place.

  • Jun 19th, 2017 @ 8:44am

    Re: Contempt of Court

    An answer you'll find unsatisfying is that it was part of the inherent power of courts at the time the Constitution was written, and Article III just says "the judicial power of the United States," not "the judicial powers to [X, Y, and Z]," unlike the limited enumerated powers of Congress in Article I, so the only limitations on traditional English judicial power circa 1789 are those spelled out in the Bill of Rights or established by federal law.

    For example, contempt does require Due Process.

  • May 5th, 2017 @ 5:19pm

    Re: Re: Re: Slander of Title - Definition

    I'm a little frustrated with your response, because to me, the argument went like:

    DB: I think "slander of title" is limited to the elements of the writ at common law.

    Me: According to modern interpretations as set forth by the Restatement, slander of title also includes what might also be called "trade libel," which I think does include this case. From brief research which I won't bore you with, I know Illinois does allow for both kinds of actions, and this kind of action has never been specifically allowed or prohibited.

    You: From my literal reading of the text of the Restatement, without reference to its interpretation over 40 years in Illinois case law, and not taking into account that the American Tort Reform Association considers Cook County, Illinois, sixth among its "judicial hellholes" where judges bend over backwards to give plaintiffs the benefit of the law, I'm going to say that your reading is obviously incorrect.

    * * *

    To simplify, given my experience in tort law (I used to sue people for money damages) and about 20 minutes with a legal database service using the skills I developed over 3 years of law school and 12 years of legal practice, I think this is a case a plaintiff could get away with, because I think a judge will reasonably find that "bad estimates" injures a person's ability to sell, which is a tort in Illinois. I think it's even more likely in Cook County, which is plaintiff-friendly.

    As a matter of "good policy" or "common sense," you may be right. But don't assume that the law is on your side.

  • May 3rd, 2017 @ 8:22pm

    Re: Slander of Title - Definition

    I think "slander of title" can be read that broadly.

    I'm operating off Restatement (Second) of Torts § 624, "Disparagement of Property—Slander of Title":
    "The rules on liability for the publication of an injurious falsehood stated in § 623A apply to the publication of a false statement disparaging another’s property rights in land, chattels or intangible things, that the publisher should recognize as likely to result in pecuniary harm to the other through the conduct of third persons in respect to the other’s interests in the property."

    This folds in both the traditional "fake lien" tort and all sorts of commercial disparagement, such as Bose Corp. v. Consumers Union, 466 U.S. 485 (1984), where but for the NY Times v. Sullivan malice test saying something false about the way a speaker sounded was actionable.

    I think "our special appraisal system considers the property to be X," where X is lower than the value of the property, is sufficiently disparaging to the interest in property to match.

    I can tell you because I searched that there is no case on point in Illinois, but they do accept the Restatement.

    As for substantial factor, yes, whether or not the statement is protected opinion would be first analyzed, but there was a separate question raised in the article that, even if it was defamatory, damages couldn't be proved. I think they might be.

  • May 2nd, 2017 @ 5:59pm

    Slander of Title

    I think the snark is off base. This should be a "I can't believe the law actually allows this" angry article on Techdirt, not a "lawyer doesn't know the law" article.

    The complaint doesn't come out and use the archaic term, but the argument fits into an old, separate tort called "slander of title," which is just as it sounds -- saying that a property is worth less than it actually is.

    Furthermore, the causation argument may be tenuous, but it's not as tenuous as Tim Cushing makes it out. Illinois accepts "substantial factor" tort causation, so the Zillow estimate need not be THE cause of any drop in price, just a "substantial" cause among many. We can argue back and forth about what evidence could support such a finding, but at the pleadings stage, one can't disprove substantial factor causation, and if a suit gets to discovery, it's far less ridiculous.

    I don't know how the suit will eventually shake out, but at the outset, it seems like it actually pleads a real cause of action.

  • Apr 21st, 2017 @ 1:40pm

    Re: Waiver vs Assignment

    According to the article, moral rights can't be assigned under VARA.

  • Apr 7th, 2017 @ 3:25pm

    Re: Re: In New York, the Supreme Court

    Agreed, it is a Court of Appeals decision, but it makes everyone dumber for the article to say "Supreme Court," because that's not the correct court.

  • Dec 28th, 2016 @ 1:12pm

    Re: Stop using that study without caveat.

    -putting it on Facebook. Couldn't finish my thought. Sorry!

  • Dec 28th, 2016 @ 1:12pm

    Stop using that study without caveat.

    The author keeps saying in these articles, "Facebook isn't as good as a comments section," but for the study that's evidence that comment sections work, it's a cite to a news organization that already shunted its comment section to Facebook. Here's the study method (

    "We partnered with a local television news station with a vibrant Facebook community to conduct a field study. The station was an affiliate of a major television network in a top-50 Designated Market Area. Over 40,000 people had liked the station's Facebook page. The study took place between December 2012 and April 2013. As part of the study, members of the newsroom would post a political story on Facebook each day and then vary their engagement with commenters according to a randomized schedule."

    I have other concerns about the study (there's no evidence that the lessons are scalable to sites with millions of daily pageviews, I don't think it's been replicated, etc.), but let's start with the fact that it's already about killing your comments section and putting it on

  • Dec 23rd, 2016 @ 12:28pm

    What are the terms?

    Would really love to know whether the company is going to change its practices in the future under this settlement or if the plaintiff and her lawyers are just getting paid to go away.

  • Aug 31st, 2016 @ 11:22am

    Re: Re: Target Effect of Fla. Shield Law

    Legally, you're correct. The lawsuit doesn't and can't change the Fla. reporter shield law.

    I was referring to two things, clearly less than eloquently:

    1) Since there's a journalist shield law, the player can't file a "John Doe" suit against the leaker and subpoena ESPN or the reporter for his or her name. Any legal method of investigation to try to get around this might fail.

    2) More speculatively, a way to get around the inability to subpoena is to file a Hulk Hogan-style privacy case. The player still can't legally compel ESPN or the reporter to disclose the names, but, with the threat of tort damages, the player can make ESPN "an offer it can't refuse": what's more important, a couple million worth of damages and legal fees, or a source who admittedly stole some medical records?

    This might be a couple months down the line, possibly at summary judgment, when the parties have a more solid view of their relative positions.

  • Aug 31st, 2016 @ 7:08am

    Target Effect of Fla. Shield Law

    With regard to "why is the player suing ESPN," I notice that Fla. has a journalist shield law.

    Which means, basically, that the most direct option for figuring out who gave up the file, asking the reporter via subpoena, is out. It's theoretically possible to find the leaker's identity through other means, but none are guaranteed.

    So, if you're the player and you want someone to be held responsible, you sue ESPN. Either A) you win a bunch of money, or B) you get, as a condition of settlement, ESPN to narc out its source so you can chase after him.

  • Jun 3rd, 2016 @ 12:47pm

    Re: Re: Re: Re:

    I think there's a reasonable argument that prohibiting treatment "as the publisher or speaker of any information provided by another information content provider" is different than prohibiting all liability for the actions of such publisher or speaker.

    The critical words here are "treated as" -- if I say that you have an independent duty that the original party could never be held liable for, then I'm not treating you as that party.

    I've seen this in other liability contexts, such as where a hospital that can't legally be sued for "medical malpractice" is sued for "negligent supervision" of the staffers that committed the malpractice.

  • Jun 3rd, 2016 @ 9:37am

    Re: Re:

    I'm pretty sure, given the way the 9th Cir. wrote the decision, that California imposes civil liability to people in the second instance.

    And so I'm wondering whether we're arguing about what the law is, or what the law should be.

    If it's what the law should be, carry on -- I think California tort law is too plaintiff-friendly generally. But arguing about what the underlying law should be doesn't really help when talking about how the law as it currently is interfaces with CDA 230.

    And here's why I think the CDA 230 defense doesn't quite work here.

    Let's say that California had a law saying that all providers of a service, whether in the real world or electronic, paid or unpaid, etc., had to provide a puppy to every 1000th customer free of charge or face civil liability from the customer who wanted a puppy and didn't get one. Let's further say, to get all our facts in a row, that it was challenged on all relevant state and federal grounds by the United States Chamber of Commerce and both the California Supreme Court and the United States Supreme Court upheld the law so that, no matter how dumb and counterproductive this puppy-providing law is, it only legislative action could change it.

    Someone signs on to a CDA-covered service in California as the 1000th user. Doesn't get a puppy. Immunity?

    I would say not, because the duty exists independently of the fact of the service.

  • Jun 3rd, 2016 @ 5:21am

    Re: Re: Re: General knowledge vs Specific

    I don't think this case is that broad with regards to CDA 230, because it involves some really particular facts.

    Here, the complaint says the website owners knew that someone was trolling the website to commit actual violent crimes against the users, and in fact knew enough to provide specific details about the scheme (like, "be really careful about randos who want you to go to Florida"). Furthermore, this is under California law, which is the most liberal of jurisdictions on this particular issue, and unless every case brought in California gets Cal. law (not likely for NY residents, etc.), this is limited.

  • Jun 3rd, 2016 @ 5:15am

    Re: Re: Re: General knowledge vs Specific

    I think we're arguing two different things.

    I'm arguing that the complaint was specific enough to invoke California's tort of "failing to warn of a harm you have some foreknowledge of," which is somewhat particular to California law.

    I get the sense you're arguing that Cal. law is dumb. This may be true; I have often disagreed with the choices of the Cal. Supreme Court and legislature.

    But the "dumbness" of the law doesn't matter for CDA 230. Only whether the liability comes from being a "publisher" of material on the internet. And if it's a super-general "there might be crime" warning requirement, that doesn't really intersect with CDA 230.

  • Jun 2nd, 2016 @ 7:51pm

    Re: General knowledge vs Specific

    I get your argument between general and specific, but according to the statement of the facts in the complaint from the opinion (helpfully posted above), the case is in fact that specific. The plaintiff alleged that the website knew about a year before plaintiff was raped that the two particular guys from Florida who raped her were using the site to rape women, and had been doing so since 2008.

    The complaint goes so far to allege that the current owners of the website sued the prior owners for not telling them about these particular rapists being serial users of the website before selling the site.

    I think the lawyer who drafted the plaintiff's complaint was a pretty smart guy; this was the best-pled case to argue that this was a "post a picture of the known dangerous person in your establishment" case rather than a "moderate comments" case.

  • May 27th, 2016 @ 5:16am

    Re: There are some differences

    I agree. I think that there's an argument that AirBnB is a "market maker" rather than a passive advertiser; that, without AirBnB, there is no business. As such, it's not the message board "provider of information services" covered by Section 230.

    However, a number of courts have disagreed when it comes to Ebay, which is a not too-dissimilar service.

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