Thomas Cooley Law School’s Attack on a Critic’s Anonymity Hits Some Snags

by Paul Alan Levy

The litigation reported last month in which Thomas Cooley Law School sought to stanch adverse publicity by suing anonymous critics has taken a couple of odd turns.  At the outset, the case presented the enticing possibility of having the Dendrite rule adopted in Michigan, whereby, as often discussed on this blog, a party trying to use a subpoena to identify anonymous speakers has to meet procedural and substantive standards designed to ensure that the First Amendment right to speak anonymously is not needlessly lost.

However, some sharp practices by the plaintiff’s lawyer, whose zealous advocacy for his client took him close to the ethical edge in my view, and a weak surrender by the Doe’s web hosting service, brought some other issues to the fore, and combined to put an anonymous blogger at risk.   Both Internet posters with trenchant criticisms to advance and lawyers who seek to defend them can learn some lessons from these developments.  The developments may also show a need for California to add some protections to its perhaps too-easy method for lawyers to obtain California subpoenas in support of discovery to identify anonymous posters

Parental Advice from the FCC Head

The Chair of the FCC, "Uncle" Julius Genachowski, has kindly provided expert advice to high schoolers that half the parents in the world could provide: Kids, use technology to learn and cut the cost of obtaining information, but don't let technology distract you by sending too many text messages and sitting in front of the computer all day playing mindless games. Really?! 

Update on Fight in California Concerning Taxing On-Line Sales

Back on  August 16 we explained that California had enacted legislation imposing sales tax on on-line sales, but that Amazon was backing a referendum to repeal that legislation. Perhaps realizing the illogic and unfairness of exempting on-line sales while sales at bricks-and-mortar stores are subject to tax, and perhaps understanding that sales tax on on-line sales is inevitable sometime soon, Amazon has cut a deal: If the California Legislature delays the on-line sales tax for one year, it will withdraw its referendum. The Legislature goes out of session today, and Governor Jerry Brown has yet to say whether he'd sign the one-year delay legislation.

CFPB Nominee Richard Cordray About to Testify Before Senate Banking Committee

Here.

Do the File-Sharing Cases Mean Less Protection for Anonymous Speech Whenever the Plaintiff Claims Copyright Infringement?

by Paul Alan Levy

Recently I discussed a case in which a web hosting service betrayed its customers by turning over identifying information about Thai emigres who posted criticisms of Thailand’s lèse majesté laws to a web site hosted by that service, who considered that even disputing the laws was an insult to the king.  Although there is now a consensus rule requiring at least preliminary proof of wrongdoing and, in many states, an express balancing of interests before the right to speak anonymously can be taken away, when the ISP is a weak link, that rule provides no protection at all.  In a recent case, however, it was a federal magistrate judge who was the weak link, failing failed to ensure sufficient protection for the free speech rights of foreign nationals who used United States Service providers for their commentary.  Judge Harold Lloyd relied on another line of decisions applying relaxed scrutiny to subpoenas to identify alleged downloaders when they are sued for copyright infringement

No Preemption for U.S. Bank

On August 1 the Ninth Circuit Court of Appeals held that a consumer's California law claims against a national bank for improper repossession were not preempted by the National Bank Act and OCC regulations.  In a case argued for the consumers by fellow blogger Paul Bland, U.S. Bank's innovative proposal to be bound only by the uniform provisions of the state's Uniform Commercial Code was soundly rejected.  The Court of Appeals relied on the savings clause of the OCC preemption rule, which exempts state laws regarding the "right to collect debts," a category in which it had no trouble placing California's Rees-Levering repossession notice law. The Fourth Circuit will be hearing arguments later this year in the Epps v. JPMorgan Chase case, which raises similar issues.

2011 Selected Consumer Statutes Available

by Jeff Sovern

I am pleased to report that Thomson/West has just published the 2011 edition of Selected Consumer Statutes, a compilation of consumer statutes, regulations, and similar materials on consumer law.  The new edition includes changes in the Truth in Lending Act made by the Dodd-Frank Act, as well as regulations issued or amended since the 2009 edition.  Though designed to accompany our consumer law casebook, it can be used with other casebooks or as a free-standing source for those practicing consumer law.

Expansive New Copyright Ruling Lets Companies Punish Reporting of Newsworthy Meetings

by Paul Alan Levy

In a decision that apparently expands copyright law far beyond its intended scope, a federal judge has held that a company (in this case, Swatch) that conducts a newsworthy conference with security analysts of its own choosing can register a copyright in its statements, by the simple device of recording the conference, and then bring an infringement action against someone (in this case, Bloomberg) who makes its own record of the statements and provides too much of those statements verbatim.

Bloomberg defends what it did as fair use, but just recognizing copyrightability makes the extraordinary remedies of the copyright code, including statutory damages as well as awards of attorney fees, available against news agencies that guess wrong about how much verbatim reporting is too much.

Another angle worth considering is whether the Boston police used the wrong methods to punish Simon  Gilk for using his cell phone to video tape police conduct that he considered improper.  Many bloggers have celebrated the First Circuit decision holding that the taping was protected by the First Amendment.  So what would happen if the police announced a policy of recording everything they do?  Then under the New York decision, the police could register a copyright in the recordings and sue others who made recordings for copyright infringement.

The Lost Decade (and then some) for college graduates

How valuable is that college degree? The Economic Policy Institute reports that in the first decade of the 21st century wages for new college grads have declined by about 5% (adjusted for inflation of course). Those wages went up some in the 1980's and a lot in the 1990's.

Comparing the Foreclosure Crisis in the U.S. and Europe

At Credit Slips, Alan White has this interesting post comparing the foreclosure crisis in the U.S. and Europe. Default rates are considerably lower in Europe, in part it appears because banks in Europe were not as loose with their mortgage lending. Foreclosure rates in Europe are also lower than in the U.S. For example, "[i]n 2009 there were about one million completed foreclosure sales in the US (out of about 60 million mortgages outstanding.)  In the UK there were 54,000 (out of about 15 million mortgages.)"