Blog Ipsa Loquitur

A quick congratulations to The IT Law Wiki on reaching 10,000 articles. I really like this project, and I think they’re as ambitious as they are overlooked by the web at large. In their own words:

The IT Law Wiki is a web-based, free content encyclopedia project. Its goal is to catalog all of the legal issues, cases, statutes, events, people, organizations and publications that make up the global field of information technology law (often referred to as computer law).

The IT Law Wiki is written collaboratively by volunteers from around the world. With rare exceptions, its articles can be edited by anyone with access to the Internet, simply by clicking the edit this page link.

The IT Law Wiki is continually updated, with the creation or updating of articles on topical events possible within seconds, minutes or hours, rather than months or years for traditional printed publications. This way, theinformation here can be as up-to-date as possible, instead of having to wait for a small group of people to update the information as the world changes. The more people that use the IT Law Wiki, the more up-to-date theinformation will be.

Filed on under The News

Filed on under A Day in the Life

In my third year of law school, I helped launch a legal reporting blog at my school; Legal As She Is Spoke gives students a chance to practice writing (and thinking) about the law.  The stories principally correct the mangled or absent legal analysis in the news.  I do a bit of that here, but I think these folks do a better job than I do most of the time.

My new favorite is “Judge Throws (Face)Book at Juror” — we all know it’s a bad thing for a juror to be eager to convict someone before the end of the trial.  But why exactly is it such a bad thing?  The answers can be surprising sometimes.

During a trial in Massachusetts, a juror fired off an e-mail to 800 of his closest friends saying, “[j]ust say he’s guilty and lets [sic] get on with our lives!” The Massachusetts Supreme Judicial Court rejected the defendant’s claim that he was prejudiced by the juror misconduct.

The court reasoned that the jurors were not exposed to any extraneous information that would have compromised the fairness of the trial. Similarly, Ms. Jons’s Facebook post is not a search for information related to the case, but a communication with her friends about the case.

Read the rest at Legal as She is Spoke.

Filed on under The News

My favorite part of the newspaper is the comics. I personally like Calvin and Hobbes, but that one hasn’t been in the papers for about fifteen years. I settle for the “news of the weird” stuff these days. You know, stuff like “Kitten Rescues Family from Burning Home” or “SWAT Team Requested for Violent Midgets” that makes you chuckle for a few seconds. (The name of the newspaper in the second article is one letter away from The Onion, which made me do a double-take. It’s just good to know the police are available to take care of small problems.)

Sometimes, they involve crazy lawsuits that make you scratch your head and curse lawyers. You don’t read a lot of these cases in law school, since by definition “the crazy lawsuits” aren’t really good for demonstrating an awful lot of law or legal theory. But they’re still hilarious in their own right. For instance, Destructoid has an article about a lawsuit filed by a man who claims the creators of a video game made it “too addictive.” Scoff!

Destructoid makes this sound like the signs of a society gone wrong:

NCSoft [the developer of the game] has been trying to get the case dismissed, because it is ludicrous, but the judge has refused. This is the world we live in, where a man can sue a game maker because he played their game too much.

Sidebar: If I were the developer, I’d take it as something of a compliment if someone spent 20,000 hours (the equivalent of 833 days!) playing my game. Hell, if the gamer had a minimum-wage job that he spent 20,000 hours on, he could afford a shiny new Porsche 911 GT3 RS, and even insure it for about a week with the money he had left over.

This is not an example of a hilariously out of touch and inept judge handing out free money to a scheming freeloader. Filing a stupid lawsuit is a far sight from winning.

The Lawsuit

There are lots of different kinds of lawsuits. If you have a contract with someone, you can sue for breach of that contract. If you punch someone, you can be sued for an intentional tort (battery, specifically). If you accidentally injure someone, then the victim’s claim is for another kind of tort: negligence. Negligence is a time-honored lawsuit, and one of the areas we spend a lot of time on in law school.

NCSoft has tried to get the case dismissed for failure to state a claim, which is the standard way for dealing with crazy lawsuits. A failure to state a claim is pretty much what it sounds like; the lawsuit you filed in court doesn’t contain a recognized claim, it just recites a bunch of bad things that happened to you. Since the judge in this case, Judge Kay, has refused to dismiss the case for failure to state a claim, we can assume one of two things:

  1. Judge Kay has no idea what a video game is, how the law works, or what common sense is, and he should never be permitted to be in charge of anything ever; OR
  2. He had a pretty good reason for declining to dismiss the case.

So, because the motion was to dismiss for failure to state a claim, if there was actually a claim stated, the case shouldn’t be dismissed for failure to state a claim. It’s tautological, but it bears consideration, and Judge Kay would probably be happy to know that he’s not as woefully inept as Destructoid believes him to be.

A Claim of Negligence

The lawsuit claims negligence on the part of NCSoft. Negligence is composed of four relatively simple elements.

The first is that the defendant owes someone a duty to act with some level of care; to make sure that certain bad things don’t happen to certain people. Drivers owe a duty to pedestrians to make sure their car doesn’t end up on the sidewalk. Grocery stores owe a duty to customers to make sure the shelves don’t tip over. Doctors have a duty to make sure that when they amputate your leg, they amputate the correct one.

The second one is that the defendant failed to live up to that duty, breaching the responsibility he owed. The driver ends up on the sidewalk, the shelves collapse on a stroller, or the doctor amputates an arm instead of a leg.

The third element is that the plaintiff suffers a physical injury. Broken legs, shattered vertebrae, all the sorts of things that open-mic night comics think lawyers salivate over. (Operant conditioning is a harsh mistress.)

The fourth element is that the plaintiff’s injury was caused by the defendant’s breach. This should be pretty straightforward, but it ends up being kind of tricky when lawyers argue about whether any subsequent events severed the chain of causation, whether the defendant’s actions were the proximate causes or cause in fact, and so on and so forth.

Bringing it Home

So, then, for the plaintiff’s lawsuit for negligence to survive a motion to dismiss for failure to state a claim, it has to state that the plaintiff suffered an injury because the defendant failed to take a certain measure of care, and that the defendant had a duty to exercise that measure of care. None of these things have to be true. None of these things have to be proven. None of these things even get to be argued. The question for the judge is whether the plaintiff has stated a claim, not whether the plaintiff has a good case or a bad case or a laughably stupid case.

So if the plaintiff in this case says “these guys should have warned me the product was so dangerous, but they didn’t and I suffered an injury because of this carelessness,” that’s a claim. That’s negligence. That’s essentially all you need to do to survive a motion to dismiss for failure to state a claim.

Now, I would disagree that a video game company owes a duty to anyone to warn that their games may be addictive. I don’t think that the absence of a warning label “caused” the injury. I’m not even certain “I played your game too much” is an injury. In short, this lawsuit has a hilariously bad claim in it, but it’s still a claim. A judge shouldn’t dismiss a lawsuit for failing to state a claim unless it actually fails to state a claim. This doesn’t mean that NCSoft is doomed to pay this man frillions of dollars, or that they’ll even have to try the case.

NCSoft’s next move is to file a motion for summary judgment, which is where a defendant doesn’t contest the facts alleged by the plaintiff, but points out that even if they’re all true, the plaintiff would still lose. It’s the legal equivalent of shrugging your shoulders and saying “so what?” For example, NCSoft could admit they didn’t put a warning label on the game, and then convince the judge that they had no duty to warn players that the game was addictive. If successful, it’ll resolve the case in NCSoft’s favor, ideally restoring Destructoid’s faith in the legal system.

Filed on under Legal Theory

Cindy Cohn, the legal director at the EFF, has written a wonderful review of the Google-Verizon deal that seems to have the entire internet aflutter. If you’ve never heard of the EFF, rest assured that they’ve worked tirelessly to advance civil liberties on the internet before any of us had even heard of the internet.

I had the good fortune to meet Ms. Cohn this past Spring; she’s remarkably brilliant, and you’ll be hard-pressed to find a more cogent analysis of the Google-Verizon deal from a net-neutrality perspective than the EFF’s take.

Filed on under The News

Google has recently struck a deal with Verizon: I think they’re both hedging their bets in case this whole “Net Neutrality” thing doesn’t pan out. Google managed to wring out of Verizon a promise to leave the “regular” internet open, but the mobile internet (which is increasingly becoming “the internet”) is apparently fair game for all manner of tiered services. Reaction to this agreement has been varied; Epicenter has a nice roundup of the varied op-eds from around the blagonet. [Click a Doodle Doo]

Filed on under The News