The issue with law is that laws are dissimilar from jurisdiction to jurisdiction, in meaningful enough ways that giving advice based on the laws for one jurisdiction might be entirely useless in another. Moreover, even I were to live in that jurisdiction, unless I am intimately familiar with the aspect of law questioned about (which is highly unlikely, even extremely experienced attorneys do legal research), I will have to spend time researching. If I spend time researching, I expect to be paid, generally because the tools used to research are not, themselves, free, like Westlaw or LexisNexis. Moreover, I generally get paid to research to begin with so, in not doing paid research for other clients, I am potentially losing money I might otherwise be making.
Not to say that lawyers can never give good legal advice to legal questions without researching--but the paradigm that I just described is a big reason why people, including lawyers, answer legal questions with "hire a lawyer."
I am a lawyer, and I have, in my own startup, contended with a company attempting to sue me/my startup for allegedly infringing on their trademark.
I'm sympathetic to your cause, but playing with intellectual property issues is serious stuff and the reality of the situation is that better-funded players will not infrequently attempt to bully you into getting what they want, as appears to have occurred here. Obviously hindsight is 20/20, but you should have consulted an attorney immediately on receiving a cease-and-desist letter, even if you thought that their claim was entirely frivolous (which, given the facts presented here, is hard to say). Had this occurred, you almost certainly would either not be in this situation, or saved yourself a ton of trouble.
Given that you did not and this situation has evolved to what it is, your only choice is to retain an attorney if you’d like to continue operate the app and not pay whatever damages they alleged. And, frankly, you're in a poor position because, since the court has already entered a default judgment against you, you will have to show cause as to why the court should set aside this judgment, which will require more time and effort than if you have initially opposed the lawsuit, even if what you say regarding a piece of the document missing is true.
If you do retain an attorney and fight this, realize that, if you lose, the opposing side might be able to recoup the entirety of their attorney's fees (which would be very expensive for you, particularly in the unlikely event you went to trial or the like, and it appears that they have already alleged this right now), and, possibly, your profits (depending on a number of factors). That's very serious stuff.
I wish I could give more direct advice, and I strongly agree with commenters here in other posts lamenting how elitist law is and so on, but you have absolutely no alternative but to retain an attorney. I don't know where you live and where this litigation is taking place, but there are tons of lawyer referral services out there (your local county bar will have such a service, you can find out on their website), and you can speak to various attorneys who might understand your financial situation and be able to work with whatever budget you have. Just because an attorney says that they charged $X does not mean that you can’t find another, competent attorney, who might charge less. If I were in your position, and wanted to fight this, I would spend my time either finding/raising money, or talking to attorneys about how you can structure a fee schedule that would work with your finances (lawyers are open to negotiating: you can say "I can only pay you this or that" or "I can pay you this or that in the future"—see what they say and how flexible they will be). I am skeptical that someone would take your case pro bono.
As a general piece of advice based on personal experience to others: don't ignore intellectual property issues. Getting a trademark is not particularly expensive (and, unlike this situation, something that you can, actually, do without consulting an attorney, or at least for little $ should you need to consult an attorney) and can save you headaches in the future. If you receive a cease and desist-type letter, take it seriously, regardless of how frivolous you think their claim is. If whoever sent you the letter went to the trouble to have their lawyer draft a letter to you--which means that they probably paid the lawyer a non-insignificant fee to do that--they are certainly taking it seriously, and so should you. Even well-funded companies don't throw money away to, of all people, lawyers, unless they think they can get something they want from you, and/or they think they actually have a meritorious claim. Do not attempt to respond to the cease and desist letter, unless you have experience in how to do this. If you want to avoid paying an enormously onerous legal fee, you can try your hand at drafting a response—but absolutely get a lawyer to look at it prior to sending it. This may be more affordable than you think (~1-2 hour of work, or the like, for a lawyer). If you're worrying that you may be infringing someone else's trademark, or someone will try to sue you in the future (as apparently happened here), you can get a declaratory judgment (for a fee) from a court stating that you're not infringing-again, something to talk to a lawyer about.
That sounds like a good idea, although it looks like Joel has representation from a professor at Harvard law (Charles Nesson, http://en.wikipedia.org/wiki/Charles_Nesson) who, I would guess, is representing him for free. There are probably a non-insignificant number of attorneys who are passionate about this sort of stuff that would take on these kinds of cases pro bono, although finding them may difficult.
Not to burst anyone's bubbles, but just because the DoJ has issued a letter stating that they believe this is constitutional does not make it so. There are opinions, I believe, from the First and Seventh Circuits that state explicitly that this is the case, but, probably until there is a definitive decision from the US Supreme Court or the like, or of an appellate court in a given state, local police could still try to arrest you for recording them, and the police may be able to make a colorable argument that that is valid. It's not inconceivable, depending on the jurisdiction, that a court could decide in police's favor were someone to sue in a situation like that.
This is a fine goal, however, beyond what other have said here, it's important to realize that a lot of "laws" or "rules" that impact individuals on a day to day basis are not created by Congress at all--in fact, they're created via administrative agencies through rulemaking processes (see http://en.wikipedia.org/wiki/Rulemaking). This is where the "rubber meets the road" of actually implementing broadly worded language that Congress has passed, and how these rules are promulgated can be vastly different from how Congress operates. For one, administrative agency rulemaking is almost always open to public comment and, by law, these agencies are obligated to take into considerations comments left by the public.
In a number of ways the process is more open and participatory than legislative law making, and, as mentioned, the regulations passed often have more of a direct impact on day to day life. There are a number of solutions out there that are attempting to make this process more transparent and participatory: for example, http://regulationroom.org/ (operated by a clinic at Cornell law school). In my opinion, informing the public of the importance and participatory nature of rulemaking (and getting more people involved) is probably a more realistically achievable goal than the proposed solution, and would likely have more tangible effect.
This article seems to imply that you can never change people's behavior by law (i.e. like posting a sign on a door saying not to throw towels on the floor) because people will always do whatever they want. I don't think I agree with that--I think the quesiton is to what extent are entities willing to impose penalties and enforce the law to sufficiently change people's behavior. For example, obviously if the company in the hypothetical hired a guy to sit in the bathroom to make sure that people threw paper towels in the trash can and then fired people who disobeyed, far fewer people who throw paper towels on the floor.
So, the issue as related to piracy is not necessary that people would never change their behavior, its just that the cost of monitoring behavior and enforcing currently existing law/creating new law to effect such a behavioral change ("don't pirate stuff") is extraordinarily high. Right now, the strategy of the media industry appears to be to spend money under the presumption that the amount of money they spend enforcing/lobbying/trying to pass laws to prevent piracy makes economic sense: they will gain/save more money than they spend. This seems unlikely, but probably people have punched the numbers for these companies and concluded that this is the case. The radical alternative approach is to completely rethink the distribution and pricing scheme, and focus less on margins but more on quantity--distribute the content to as many people as possible, but make fewer $/product. To impose that would require either some fairly revolutionary thinking in companies that have repeatedly shown a hesitancy to innovate (and would require them to abandon a strategy now that still makes hefty profits), or to make media companies hurt to such an extent that they have no alternative (which, right now, does not appear to be happening).
I understand that this case was decided on grounds consistent with Fricosu, and that the court held that the testimony was not a foregone conclusion and therefore the court could not compel decryption. I am not disputing that that is the holding of this case.
However, in addition to that, the court notes that there are two reasons why the Fifth Amendment prevents compelled description. Besides the foregone conclusion doctrine, there is discussion such at 22: "the decryption and production of the hard drives would require the use of the contents of Doe’s mind and could not be fairly characterized as a physical act that would be nontestimonial in nature. We conclude that the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files." This to me implies the court's belief that the act of production would be testimonial because it would imply that Doe possesed and had access to incriminating files. Since possessing and having access to child pronography is a crime, that alone--that act of him affirming that he had access to such files by providing a decryption key--would incriminate him. By implication, this would not be the case if possession of certain docuemnts was not itself a crime, yet these documents could be incriminating.
The court spends 2 paragraphs discussing this, but I think it is not inconceivable that this sort of argument could be applied to other cases where the foregone conclusion doctrine might otherwise be succesfully applied to compel decryption, since ostensibly any 1 of the court's two points could be used to prevent compelled decryption. I wonder if this conclusion is based solely on the nature of the crime alleged here, or would be applicable to other crimes where merely showing that you have possession to access to incriminating documents is not itself a crime, as in child pornography.
My reading is that the court implied, and what likely could be argued/people would like to argue, is that, even if police were aware of the existence of specific documents, you might still be able to use the Fifth Amendment to prevent decryption. If that was the clear holding of this case, that would be significant. My point about the murder case was to replicate a factual scenario in which the government knew of specific files, and the possession of those files alone would not constitute a crime: could the would-be defendant still use the protections of the Fifth Amendment to prevent decryption? That factual scenario is comparable to Fricosu: the government knew of the existence of specific files and compelled decryption. Given the dicta in this case, however, it is arguable that, even in such a scenario, a defendant would be able to prevent decryption, thus creating an inconsistency with Fricosu. As far as I am aware, only the Fricosu court has discussed this issue--and that was cursory, and from a district court in Colorado.
Realize that this is a fairly narrow opinion, and, in my opinion, not a particularly well-reasoned one.
The issue here is child pornography: the would-be defendant was suspected of having child pornography on various hard drives which were encrypted. The court states that the actual contents of the hard drive are themselves not testimonial—that is, they are not covered by the Fifth Amendment and, if the government had access to the hard drives, they could present whatever was incriminating on them into evidence. So the issue is whether the act of producing the documents is a testimonial act and therefore covered by the Fifth Amendment
The court concludes that the act of production is a testimonial act because, one, the testimony was not a "foregone conclusion." This holding is based on a case called Fisher v. United States, in which the Supreme Court stated that it was not testimonial to hand over certain papers that might have incriminating evidence because conceding that documents existed, that you had control over the documents, or that they were in your possession was not incriminatory given the circumstances of that case. Under the "foregone conclusion" doctrine, the government knew of the existence and location of these papers so the production of the papers added nothing or little to the government's information. If the government did NOT know that documents existed, they could not compel a would-be defendant to reveal the documents.
Second, and most importantly, the court concluded that decrypting the documents would "use the contents of [the would-be defendant]'s mind" because "the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files." It's again important to note that this is a child pornography case: possession of child pornography is a crime, so if the would-be defendant here provided a decryption key, this would be tantamount to him admitting that he possessed the hard drive and had access to the files within it—that alone would constitute a crime if the files were found to be child pornography. This is therefore what the court later refers to as an "implied factual statement" and the Fifth Amendment protects this. Although the court also suggests that providing a decryption key might be like providing a combination (and therefore be admissible for Fifth Amendment protection on other grounds), it unfortunately devotes very little space to this discussion—and this seems to be the really big issue here.
The case therefore leaves several unanswered questions: this is a child pornography cases where mere possession alone is a crime: what if that wasn't the case? What if this was a murder case and the defendant had stored notes about his murder on the computer? What if the foregone conclusion doctrine wasn't applicable—would the conclusion here be the same (most of the opinion is actually devoted to this discussion, which is less broadly applicable because, if the police know of the existence of specific files on hard drive, this doctrine is inapplicable)?
Anyhow: it still is possible to get access to these documents if the government gives him sufficient immunity, as the court notes. This would be pretty important because if no one could ever access these documents (which presumably would be possible if the would-be defendant doesn't decrypt them) that would be an enormous problem for our justice system.
In conclusion: the applicability of this case to future cases is unclear, so, for those that want this result, I don't really think this is a "slam dunk." There will likely be many future cases further developing this doctrine. As such, right now, it's very difficult to discuss the merits of the court's holding on the "decryption is testimony" argument (which, in my mind, is the most important) in a general sense, since the reasoning here seems very specific to the facts of case.
It's important to remember that the federal Constitution and rulings by the Supreme Court interpreting the Constitution represent the floor of permissible action, not the ceiling. So, although there exists a somewhat amorphous "right to privacy" that has been applied to things like abortions, sex, contraception, and other things, this is not to say that Congress or state governments couldn't pass laws that further increase these rights. In fact, many state constitutions provide vastly more protections for their citizens than the federal Constitution does (specificaly becasue almost all states became states prior to the incorporation of the Bill of Rights to the states).
Point being, presuming that something is not a "right" or even a "fundamental right" simply becasue it does not exist in the Constitution or hasn't been interpreted to be included in it is, in my mind, a miscontruing of our federalist system. You could conceive of every state passing legislation permitting abortions (or not making abortions illegal) and have the same result as Roe. Similarly, if Congress has the power to pass a "Privacy Bill of Rights" as normal legislation (i.e. through the commerce clause), this would effectively "increase" the rights everyone has. If Congress wanted to pass a law (again, presuming that they had the power to--which is the underlying issue here) saying something like "everyone has a right to privacy," or criminalizing entities who impinge on people's privacy, this would also effectively increase the rights of everyone, subject to Congress changing its mind in the future.
I agree. I'm sure there was a time not too long ago when merchants at local shops would know customers by name and learn their habits, and, possibly, be able to learn intimate details about customers by looking at what products they bought. If the merchant then recommended a product to one such customer based on those observations, that's good business. I suppose the translation from local town merchant to faceless corporation is something of a change (most notably because the corporation may be able to use this information for other/nefarious purposes), but, conceptually, it seems to be replicating the same behavior that doubtlessly has occurred in some form since people began selling products to other people. Instead of arguing that businesses have become more invasive of our privacy, you could also argue that we have simply become more protective (or aware of) our privacy in recent years, which is why this seems like a big problem to a lot of people.
I worked with/at TakeNote, which is Cornell's commercial note taking service and dealt with this often. Notwithstanding "ethical" reasons, this is very odd to me. I think the California law cited that seems to ban the selling of class notes, and any public schools whose student policies similarly ban resale, raise colorable First Amendment issues. I know there is extant case law at least in some jurisdiction that says that your notes are your notes, presuming that they are not verbatim transcripts of the lecture. This is the case even if the lecture itself and material is protected by copyright.
This is an interesting point. Like tokenadult, my last graduate education was in law, which I currently practice, although I also know how to code, but don't have a particularly "formal" education in it. Law school (debatably) doesn't prepare you to actually practice law, but it does attempt to teach you to "think like a lawyer." The presumption is that, once you have this thought process down, and know some fundamentals of law (almost exclusively taught in the first year of law school), any "details" of the law that may be necessary to actually practice law are easily acquired, because you know where to look, what to look for, and how to use that knowledge. From my experience with CS, I don't think this is particularly different than how many coders are trained to think and apply knowledge. For example, someone that didn't know how to sort words because they'd only memorized an algorithm to sort numbers would seemingly have received a failed education in CS, as a lawyer who doesn't know how to deal with situation X because they only have dealt with situation Y would have received a failed education in law.
However, I take tokenadult's point to be that the lack of analytical reasoning as applied to law by some commenters on this site is very unfortunate given that presumably the same thought processes go into coding, which many people on HN are very skilled at. I agree that some fundamental details of law are important, but I think these details are far fewer than non-legally educated people believe. The whole idea of "the common law" as applied in the United States (in contrast to, say, doctrinal "civil law") is that it should be accessible: this is exactly why judges give reasoned opinions, as opposed to decrees, and much of the ideological underpinnings of the common law rest on the presumption that law simply "exists" in the ether, and one only had to meditate on it to discover it (for example, we used to have non-codified crimes, we still don't accept "mistake of law" or "ignorance of the law" as a valid defense, even if it practically would be impossible for someone to know of a law's existence and so on). We've obviously moved away from that presumption, but, from my perspective, law is intended to be accessible, not arcane.
It's therefore highly unfortunate, and possibly the fault of the legal profession, that law, today, is seen as inaccessible. Reading a legal opinion is not an exercise in futility--it's intended to be read, and often intended to be read by people with little knowledge of the underlying subject matter. I would challenge people, particularly coders skilled in analytical reasoning on HN, to take the time to read judicial opinions in their entirety on legal topics of interest, because I strongly believe that the analytical reasoning one uses in coding does have excellent applicability to understanding legal decisions. Law is NOT as convoluted as many presume, and judges try every day to harmonize conflicting legal concepts--in fact this is largely the entire job of appellate judges whose opinions one might read.
No one here would discourage non-coders from getting their teeth wet by doing something--anything--related to learning how to code, even if that person didn’t go to school to learn it. But, commenters on HN would be perplexed if someone didn't bother do that at all, but then tried to express an opinion on some programming technique they never bothered to learn about. This is the same sort of perplexity I get when people comment on legal topics without reading or knowing the much about the (accessible) underlying topic.
I couldn't agree more. Having worked at a large law firm, and with an offer to work for one in the near future, I am amazed at the amount of "cut and paste" resources these law firms have available at their disposal (including research, memoranda,briefs, etc.). It's unthinkable how much work is replicated from law firm to law firm, although I understand liability concerns and the way these law firms are constituted which make solving this problem (and lawyers likely see this as substantially less of a problem, given that they get paid to do this) very challenging. This plus the fact that most large law firms I am aware of are practically institutionally opposed to change (like implementing new technologies that might make the firm more efficient, or permitting the sort of ideas we're discussing here). Part of it is how lawyers are trained, part of it is how law firms operate, part of it is grounded in liability concerns... but, given how badly this recession has hurt the legal market, I am optimistic that we will see lawyers and law firms change for the better in the years to come--it's just going to take deep-seated institutional changes to get there.
It looks like Creative Commons tries to protect themselves with their disclaimer, which says that their deed has no legal value. I suppose a summary which similarly had no legal value would at least inform users about what the company does (which would be good) but, in the case of a lawsuit, if someone misunderstood the summary (or whatever), they're out of luck. And, anyhow, lawyers are taught to be risk averse. The more they have to think about and worry about the legal complications of something, the more they don't want it to happen. So, for places like Google, or whoever, adding increased readability even in a comparable "deed" would probably come at the cost of their legal department being very upset: and you can bet the second they got sued and the issue of some conflict between the summary/deed and the actual ToS came up is the second they would take that summary down.
Coming from a law background this makes me, and I imagine many lawyers, nervous. Terms of Service agreements may be wordy and hard to understand, but they're also substantive--everything in them has meaning. Good lawyers should craft them to be as concise (and readable to lay people) as humanely possible, and there's no reason to believe that the lawyers that draft ToS agreements, particularly for highly profitable businesses, have done anything but that.
Even if you have a normal ToS and then try to abbreviate it, you have a host of issues: which one would control? You could explicitly say, "the normal ToS controls in the case of a conflict between the ToS and an abbreviated version," but, if people, don't read the normal ToS because there is an abbreviated version, is it really conscionable to say that the normal ToS would control? If the abbreviated controls, there have to be many caveats: like "We own everything you upload... unless you didn't own it to begin with, in which case, we don't own it, and you guarantee to us that you have the right to use it, and you give us the right to use it," or "There are no warranties, except if this statement itself is unenforceable (which is true in some states), in which case we disclaim all warranties to the extent applicable by law, and in the event this is unconscionable or found unenforceable, the rest of this agreement is still enforceable" etc etc. Once you're in that land, you've obviously lost the point of abbreviating it.
Well, there are lots of reasons as to why capital gains are taxed at a lower rate than ordinary income. I'm not advocating that any of them are correct (and, obviously, many countries tax capital gains and ordinary income at the same rate, or possibly capital gains at a higher rate), but you could argue that a lower tax rate on capital gains offsets the impact of double taxation (corporation is taxed on the income, then you are taxed on your income), or offsets inflation, or, probably most prominently, encourages investment which in turn can encourage innovation, and so on.
There presumably are other ways to reach these same results, but that's the policy choice we have made. I don't see it as much as valuing "mere" ownership over labor, just that we've made certain policy choices as to what incentives we want in our economy.
I really want this to work, but I'm skeptical. I've lived in India, and I know that corruption is rampant. These "middle men" will try hard to figure out another way to game this system. Hopefully it's the start of something, but I think the economist is being a bit too optimistic in claiming that this alone will transform India.
Not to say that lawyers can never give good legal advice to legal questions without researching--but the paradigm that I just described is a big reason why people, including lawyers, answer legal questions with "hire a lawyer."