Author Archives: Michael Froomkin

Virtual Conversion (in NY)

Posted on March 24, 2007 by Michael Froomkin

In a decision issued Thursday, Thyroff v. Nationwide Mut. Ins. Co., — N.E.2d —-, 2007 WL 844860 (N.Y.), 2007 N.Y. Slip Op. 02442, the NY Court of Appeals, the state’s highest court, responded to a question certified by the Second Circuit: “whether the common-law cause of action of conversion applies to certain electronic computer records and data.” And, 7-0, it says the answer is “yes” — expanding the tort to intangible property. (Not all courts agree.)

So next time you take those virtual gold pieces from some newbie avatar — New York says that's conversion.

More seriously, what remains to be determined about virtual item theft is whether the communal agreement to the game license and rules amounts to license or waiver. But I can see some game EULA's being re-written to make this clearer.

Key parts of the decision below:

Continue reading →

Posted in Virtual Worlds | Comments Off on Virtual Conversion (in NY)

Gonzales Red-Handed

Posted on March 23, 2007 by Michael Froomkin

On March 13. I rashly predicted Gonzales wouldn't last two weeks. Then Bush had his petulant press conference, made his crazy proposal for the Senate to invite Rove and Miers to lie to them, and gave Gonzales a new lease on life.

But leases on life may have a short half-life. Although I'm starting to suspect I was a little optimistic, you have to wonder how Gonzales can survive revalations that contrary to his earlier statements Gonzales was in fact much more involved in discussions about firing the US Attorneys than he admitted:

Documents Show Attorney General Alberto Gonzales Approved Firings of Several U.S. Attorneys

WASHINGTON – Attorney General Alberto Gonzales approved plans to fire several U.S. attorneys in a November meeting, according to documents released Friday that contradict earlier claims that he was not closely involved in the dismissals.

The Nov. 27 meeting, in which the attorney general and at least five top Justice Department officials participated, focused on a five-step plan for carrying out the firings of the prosecutors, Justice Department officials said late Friday.

There, Gonzales signed off on the plan, which was crafted by his chief of staff, Kyle Sampson. Sampson resigned last week amid a political firestorm surrounding the firings.

The documents indicated that the hour-long morning discussion, held in the attorney general's conference room, was the only time Gonzales met with top aides who decided which prosecutors to fire and how to do it.

Justice spokeswoman Tasia Scolinos said it was not immediately clear whether Gonzales gave his final approval to begin the firings at that meeting. Scolinos also said Gonzales was not involved in the process of selecting which prosecutors would be asked to resign.

On March 13, in explaining the firings, Gonzales told reporters he was aware that some of the dismissals were being discussed but was not involved in them.

Even if the Attorney General lacked the requisite intent to in fact be guilty of a criminal act when he approved the results of a conspiracy to pervert the course of justice, he has by his series of prevarications achieved negative credibility with Congress, with the press, and now with the nation.

Alberto Gonzales must go. Swiftly.

Posted in Politics: US: GW Bush Scandals | 5 Comments

Pernicious Effects of National Security Gag Orders

Posted on March 23, 2007 by Michael Froomkin

This is an important article:

My National Security Letter Gag Order :

Three years ago, I received a national security letter (NSL) in my capacity as the president of a small Internet access and consulting business. The letter ordered me to provide sensitive information about one of my clients. There was no indication that a judge had reviewed or approved the letter, and it turned out that none had. The letter came with a gag provision that prohibited me from telling anyone, including my client, that the FBI was seeking this information. Based on the context of the demand — a context that the FBI still won't let me discuss publicly — I suspected that the FBI was abusing its power and that the letter sought information to which the FBI was not entitled.

Rather than turn over the information, I contacted lawyers at the American Civil Liberties Union, and in April 2004 I filed a lawsuit challenging the constitutionality of the NSL power. I never released the information the FBI sought, and last November the FBI decided that it no longer needs the information anyway. But the FBI still hasn't abandoned the gag order that prevents me from disclosing my experience and concerns with the law or the national security letter that was served on my company. In fact, the government will return to court in the next few weeks to defend the gag orders that are imposed on recipients of these letters.

Living under the gag order has been stressful and surreal. Under the threat of criminal prosecution, I must hide all aspects of my involvement in the case — including the mere fact that I received an NSL — from my colleagues, my family and my friends. When I meet with my attorneys I cannot tell my girlfriend where I am going or where I have been. I hide any papers related to the case in a place where she will not look. When clients and friends ask me whether I am the one challenging the constitutionality of the NSL statute, I have no choice but to look them in the eye and lie.

…

I found it particularly difficult to be silent about my concerns while Congress was debating the reauthorization of the Patriot Act in 2005 and early 2006. If I hadn't been under a gag order, I would have contacted members of Congress to discuss my experiences and to advocate changes in the law. The inspector general's report confirms that Congress lacked a complete picture of the problem during a critical time: Even though the NSL statute requires the director of the FBI to fully inform members of the House and Senate about all requests issued under the statute, the FBI significantly underrepresented the number of NSL requests in 2003, 2004 and 2005, according to the report.

Read the whole thing. And worry.

Posted in Civil Liberties | 5 Comments

Ron Zeigler Was Nothing

Posted on March 23, 2007 by Michael Froomkin

I think this response by Tony Snow during yesterday's TV interview with Harry Smith on CBS deserves to be considered a classic bit of obfuscation and non-denial denial.

Smith: “Karl Rove wasn't involved? Harriet Miers wasn't involved? C'mon!”

Snow: “This is where what you're trying to do is create a narrative that I'm not so sure the facts are going to justify. This is why what we're trying to do is get everybody to figure out what's the deal.”

Snow here is all but bragging that he doesn't know the facts. And guessing about them. But he's not saying he's going to find them out either. The White House Press Secretary surely has some way of finding out the answer to this rather obvious question. Couldn't he ask Rove and Miers and then tell us? You would think.

Then again, maybe couldn't. After all, Rove and Miers would not be under oath when they speak to Snow.

Meanwhile, CREW asks, New e-mails prompt the question: Did Bush make the decision to fire the U.S. Attorneys?

And, one account of what Tony Snow has in common with a pet albino hedgehog.

Posted in Politics: US: GW Bush Scandals | 1 Comment

There Must Be Peace

Posted on March 23, 2007 by Michael Froomkin

There Must Be Peace, a video photo montage and commentary by Stirling Newberry.

The music, incidentally, is from the last three movements of Newberry's own Piano Sonata in C, “Ares”.

Posted in Iraq | 1 Comment

Rock on Pop? I Think Not.

Posted on March 23, 2007 by Michael Froomkin

I was going to link to Dylan Hears A Who!, which was an amazing, wonderful and awful, so-close-to-Bob Dylan you wondered if it was him performance of Dr. Seuss's classic works including the Cat in the Hat.

I was going to say that the only way you could tell it was a parody is that the real thing isn't quite so monotone (except on the worst parts of Desire) Even so, I think it will change the way I see Dylan — but not Dr. Seuss. But I forgot to post the link last week and it mouldered in some queue.

And now it's gone:

Posted in Kultcha, Law: Copyright and DMCA | Comments Off on Rock on Pop? I Think Not.