Author Archives: Michael Froomkin

The Swing States Are Blue

Posted on August 23, 2004 by Michael Froomkin

Fun online tool proveded by the Wall Street Journal that lets you see a map reflecting the latest polls. Note that this latest map is however misleading as it's pre-Swift-boat, and also isn't adjusted for turnout, which will be affected by things like anti-gay ballot amendments.

Posted in Politics: US: 2004 Election | 2 Comments

Yahoo! Must Play Defense

Posted on August 23, 2004 by Michael Froomkin

The latest twist in the Yahoo! case arrived today when the 9th Circuit overruled a district court decision which had held that Yahoo! could file a declaratory judgement action in the US to block domestic enforcement of a French court's judgment that Yahoo! had violated French law against Nazi propaganda. The 9th Circuit disagreed, holding that US courts lack jurisdiction against the French parties to this case, until and unless they subject themselves to this suit either by presence or by themselves suing to enforce the French judgment.

At first glance, the primary import of this pretty reasonable-looking decision, besides simplifying teaching the case, is to give the French parties more control of the forum if they ever seek to litigate against Yahoo! in the US.

Posted in Law: Internet Law | Comments Off on Yahoo! Must Play Defense

Brad DeLong is Sleuthing for Fafblog’s Secret Identity

Posted on August 23, 2004 by Michael Froomkin

You knows things are not right when college perfessors are takin' time off from important duties like showin' that entire sections of the White House have trouble with little things like addition and substraction and instead put on their deerstalkers and attempt to discern Who Is Fafblog?:

Fafblog is clearly (i) somebody who knows about the Byzantine Empire, the Knights Templar, and the Crusades, and (ii) somebody who knows more about early and Medieval Christian Theology (the suppressed last articles of the Nicaean Creed! Hah!) then is healthy. This implies somebody who was either (a) a medieval history major, or (b) went to a Jesuit high school.

Silly perfessor. Fafblog identity is not secret. Fafnir and Giblets are well known to both of their friends, and to the Medium Lobster, who himself is welcomed in all of the finest establishments in six spiral clusters and seven dimentions.

The Medium Lobster signals that he has never attended a Catholic School, or indeed needed to study in any institution of learning; a knowledge of Romania is only a small part of what one learns in higher dimensions.

“You will never be able to comprehend the Medium Lobster,” adds Fafnir. “He bein' a higher bein' an all,” agrees Giblets. “You is just cross because we have not told you nothing. NYAAAHHH!”

Suddenly Giblets is concerned. He an Fafnir have not been agreeing so much latterly, and now they are in agreement. This is intolerable! Quick, put the next Swift Boat ad on teevee! That's it! We iz miserable again.

Posted in Blogs | 4 Comments

Posner Offers a Creative Vision of ‘Fair Use’

Posted on August 23, 2004 by Michael Froomkin

Guest blogging for Larry Lessig, Judge Posner offers an interesting idea:

Lawrence Lessig: Bill Patry, a distinguished copyright lawyer and treatise writer, and I have written an article soon to be published in the California Law Review in which we advocate an interpretation of 'fair use' that would solve the major problem that extending the copyright term creates. We argue that it should be considered fair use to copy an old work if the copyright owner hasn't taken reasonable steps to provide notice of his continued rights, as by entering his name and address in a copyright registry. Given such a rule, such registries (which have counterparts in the case of works of visual art) would spring up overnight. Then if an Eldred wanted to publish some old work, he would consult the registry or registries and if no owner was listed (which would usually be the case, because most old works have no commercial value and so their owners won't bother to try to keep them from falling into the public domain), he could publish it without a license.

I think this underestimates the extent to which conglomerates will protect their backlist, while not keeping it in print, but it's a start.

Posted in Law: Copyright and DMCA | 2 Comments

Trials or Travesties?

Posted on August 23, 2004 by Michael Froomkin

The Washington Post reports that Trials Set To Begin For Four at Guantanamo. In addition to the many fundamental structural failures (e.g. limited rights of appeal, limited access to counsel and witnesses) which are damaging our national reputation, stay alert for news of little-discussed but critical biases in implementation of the rules.

  • Have the defendants' lawyers had access to sufficient translation resources to meaningfully prepare the defense? [Earlier reports suggested the answer was “not at all”.]
  • Will the court hear arguments that the trials cannot go forward in light of the Supreme Court's decisions earlier this year? [I'd be surprised.]
  • Does a civilian court have jurisdiction to enjoin these trials? [I have no idea, and suspect it's an interesting question.]
  • Are the defense lawyers in a separate chain of command from the prosecution? [This is the norm in military trials — but was not the case in Guantanamo the last I heard, admittedly some months ago. It's a vastly important question, not just because of the potential for subtle pressure on the advocates — at least one of whom has already suffered a career-ending non-promotion, but also because it means there is no higher-up likely to go to bat for needed resources.]
Posted in Guantanamo | Comments Off on Trials or Travesties?

Do Not Read This While Drinking Anything

Posted on August 22, 2004 by Michael Froomkin

I bet almost every trial judge has dreamed of doing something like this during a discovery dispute.

Posted in Completely Different | 1 Comment