Blog Ipsa Loquitur

Business Insider has an interesting take on contract law and how it applies to online web retailers. Specifically, they report on a recent court ruling involving Zappos, everyone’s favorite online shoe store. The headline reads: Almost Every Website On The Planet Could Be In Legal Jeopardy, Thanks To Zappos. Well, that’s certainly an outsized claim.

Let’s start with a little background. Zappos is a company that sells shoes and stuff online. Recently, some hackers got into Zappos’s computers and downloaded the personal information (email addresses, names, phone numbers, etc.) of 24 million customers. Now, customers are suing Zappos for screwing up. Zappos says that the lawsuits have to go to arbitration because all 24 million customers agreed to Zappos’s Terms of Use, and one of the Terms was “no matter how bad we screw up, you can’t sue us. We go to arbitration.”

And now a court has tossed that arbitration clause, and Business Insider thinks that this will ruin every website on the planet. Well, okay. Have at it, guys. Here’s their legal analysis:

[Zappos] put a link to its terms of service on its website, but didn’t force customers to click through to it. What Zappos should have done: Force customers to click a button that says sure, yeah, whatever, they’ve read the terms and agree to them. Courts have found these “clickwrap” terms valid—even though in reality no one actually reads the stuff they’re agreeing to.

This is all technically right, but I fail to see how any of this is devastating to Every Website on the Planet. This is not news. I mean, the source Business Insider uses for this article is law professor Eric Goldman’s blog, and Professor Goldman explicitly says:

Zappos can hardly be surprised by this adverse judicial ruling. We have known for years that browsewraps are unenforceable (see some of the cases discussed here).

So yes, every website on the planet could be in legal jeopardy if they ignore nearly a decade of judicial rulings on this exact topic. This isn’t novel. No lawyer ought to be surprised about the court’s reasoning on the browsewrap/clickwrap distinction, because courts across the country have reasoned this exact way for a very long time.

One More Thing

Oh, and the other lesson from Zappos’s ruling, that “being allowed to change the terms of use at any time without notice” is toxic and unenforceable, is also extremely well settled. If you have a contract where one side can change the terms without telling the other side, that’s just not enforceable. It was true when we did it with paper, and it’s true when we do it with websites. This is not new.

Heck, here’s Professor Goldman writing about that exact issue five and a half years ago.

Indeed, the court independently concludes the arbitration clause is unconscionable. I expect courts will aggressively police these unilateral amendments using unconscionability and other limiting doctrines.

And here we sit, five years later, with courts doing exactly that.

Published on under Legal Theory

If you’re reading news articles about software patents written by anyone other than Nilay Patel, you’re probably doing it wrong. Patel, writing for The Verge:

Microsoft’s been touting its Live Tiles concept ever since Windows Phone 7 launched two years ago, but the launch of Windows 8, Windows Phone 8, and particularly the Surface tablets appear to have given a company called SurfCast an opening to file a patent lawsuit over the concept. Microsoft’s held high-profile launches of all three products lately, so news of the case is being reported widely — but a basic examination of SurfCast’s patent reveals Microsoft’s move into selling its own PCs is the key to the complaint.

And as with all patent troll lawsuits, the company in question makes no products, has no assets other than a handful of patents, and was set up shortly after the patent was filed. The fact is that this patent is lousy, the lawsuit is lousy, and Microsoft will throw a few bucks at these guys just to get them to go away.

Patel details exactly why the patent is so lousy, and why the case isn’t going to do anything. The fact is that without the kind of Samsung/Apple animus that keeps these two companies at each others’ throats years beyond the point where rational companies would settle, these kinds of patent troll suits are just a waste of everyone’s time.

Published on under Legal Theory

From Discover Magazine, a 12-year-old uses Dungeons and Dragons to help scientist dad with his research:

Alan Kingstone, a psychologist at the University of British Columbia, had a problem: all humans have their eyes in the middle of their faces, and there’s nothing that Kingstone could do about it. His 12-year-old son, Julian Levy, had the solution: monsters. While some monsters are basically humanoid in shape, others have eyes on their hands, tails, tentacles and other unnatural body parts. Perfect. Kingstone would use monsters. And Julian would get his first publication in a journal from the Royal Society, one of the world’s most august scientific institutions.

I am a supporter in principle of any and all scientific research which cites to the Monster’s Manual.

Published on under Irreverently Irrelevant

The online disinhibition effect: when people stop acting like members of a society when on the internet, and instead just act like assholes. When no one knows who you are, you can just be a jerk to everyone, right? Sure, knock yourself out, man. What could go wrong?

Well, during Hurricane Sandy, a guy on Twitter had some fun spreading fake breaking news updates. As Jack Stuef writes for BuzzFeed:

During the storm last night, user @comfortablysmug was the source of a load of frightening but false information about conditions in New York City that spread wildly on Twitter and onto news broadcasts before Con Ed, the MTA, and Wall Street sources had to take time out of the crisis situation to refute them.

What @comfortablysmug didn’t count on, apparently, was losing that anonymity. Based on photos he censored and posted to the account but I found unedited elsewhere, @comfortablysmug is Shashank Tripathi, a hedge fund analyst and the campaign manager (Tripathi has since resigned. See the update to this post.) of Christopher R. Wight, this year’s Republican candidate for the U.S. House from New York’s 12th Congressional District.

Eh. All right. So now whatever dickery Tripathi has tweeted (during or before the hurricane) can be connected to his name. Maybe his professional life is fraught with such cutthroat opposition that folks are currently printing out his Least Professional Tweets and faxing them to his boss. It can’t be that bad.

It gets pretty bad

So apparently, a few years back, Tripathi participated in New York Magazine’s organized version of the online disinhibition effect: a weekly feature where ordinary New Yorkers share waaaaay too many details about their love life with the entire world. And of course Buzzfeed found the article. It starts out kind of bad. This is actually the subtitle of the article:

Today, the Self-Obsessed, Emotionally Detached Hedge-Funder: 25, male, Brooklyn, heterosexual, single, comfortablysmug.

I don’t know which would be worse: Tripathi coming up with “Self-Obsessed, Emotionally Detached Hedge-Funder,” or New York Magazine’s editor coming up with that after reading Tripathi’s summary of his week. It’s cool, though. I bet he has all sorts of hilarisad misadventures like Barney on How I Met Your Mother. Right guys? Here is the second paragraph:

I think about how I haven’t been in a committed relationship for a year and a half now, since I broke up with the Only One That Mattered, the only girl I ever loved. The breakup was especially bitter — I still refuse to answer calls or e-mails from her and have become extremely pessimistic about relationships working. I’ve pretty much convinced myself that I am capable of living the rest of my life without a significant other, starting a family, or ever letting someone that close to me again.

The next afternoon:

I’m on the Facebook profile of the Only One That Mattered, my most pathetic habit. I’ve been prescribed Wellbutrin pretty much since we broke up. I hate days when my thoughts turn to her — it hurts but fits in with my many masochistic tendencies.

Eight hours later:

Home early because I didn’t even feel like trying to enjoy myself. I masturbate thinking back to a particular sexual encounter with the Only One and go to sleep.

The next day:

Back AGAIN on Facebook looking at the Only One’s profile. Her new boyfriend has put up new pictures of them. I can feel my face get hot, even though I know she’s been seeing him. I’m better looking than him, have more friends, and know I make far more money … he’s a freaking graduate student in philosophy. [Ed: as if I weren’t already rooting for Only One’s new boyfriend!] I will never understand or stop wanting her.

That’s kind of a recurring thing

Hey, we’ve all been there, hung up on an ex. It happens. If it never happens, you’re probably not engaging with your significant others in a meaningful way. The point here isn’t that he’s unique or lame or pathetic for not moving on.

It’s that Tripathi’s just lost his pseudonymity by spreading bullshit to New Yorkers during a state of emergency, (Thanks for that by the way, man. Classy stuff.) and it turns out he’s shared what would be private moments of intense vulnerability with the world at large.

But at least it’s not all “I’m super hung-up on my ex” — it’s also a nonstop cocktail of Ambien, Adderall, Wellbutrin, and Xanax with a chaser of “I hate my co-workers” and “I get off on hurting women”:

Lunch with some guys from work. I hate spending time with co-workers beyond the 60 hours a week I already see them. Each complains about the nuances of their respective girlfriends. I realize I am the only one that isn’t in a relationship, and for some reason it makes me feel inferior to them. I go to the bathroom and take a Xanax.

Sometimes it really irritates me when other people want to spend time with me. I have so little of it and despise the thought of feeling like I owe any of my time or self to anyone else but me.

My suspicion she has low self-esteem is confirmed once … segues beautifully into rough sex. I’m satisfied by the thought this will probably leave her with bruises.

The guy who unmasked Tripathi says starting rumors during a hurricane (and state of emergency) is a bit like yelling “fire” in a crowded theater. This, then, is kind of like yelling “fire” in a crowded theater and then handing out copies of your diary’s most embarrassing moments to screaming patrons while they flee.

Be an anonymous dick if you like, and be an anonymous dick who openly reveals his deepest insecurities to the entire world if you like. But now you’re 29 and whoever Googles you for your next job is going to find an entirely different kind of resume, man. One that ends with:

Totals: two acts of intercourse, one rough; one act of fellatio; two acts of phone sex with poorly treated ex; one collected phone number from lesbian; two acts of masturbation, both while fantasizing about ex-girlfriend.

Schadenfreude is best freude. Thanks for the fake news, Shashank.

UPDATE: And like ten minutes before I hit publish, he tweets this:

I wish to offer the people of New York a sincere, humble and unconditional apology. twitter.com/ComfortablySmu…

– ComfortablySmug (@ComfortablySmug) October 31, 2012

Spreading rumors which threaten to sow even more panic during a state of emergency? Pretty shitty. Failing to use the Oxford comma? Goddamn sociopathic.

Published on under The Digital Age

When last year’s hard drive shortage threatened Backblaze’s all-you-can-store cloud backup service, the company had to get creative to keep up its 50TB-a-day hard drive habit. The solution: external hard drives from retail stores and an army of volunteers making sure they kept coming.

GigaOM on Backblaze’s creative measures to keep the company going. I actually use them for backing up my stuff online. They had a fun little blog post about the problems they saw during the hard drive shortage following the 2011 Thailand floods, and GigaOM follows up with an interesting story about how you keep “unlimited storage” from being “unlimited* storage.”

Published on under Irreverently Irrelevant

Josh Barro, writing for the National Review:

Research has shown that the confidence of an eyewitness is the principal determinant of whether or not jurors will believe that an eyewitness made an accurate identification (Lindsay, Wells, and, Rumpel)…

Under very favorable conditions (e.g., a good view, a fair lineup), the correlation between confidence and accuracy is probably somewhere around .40. For purposes of comparison, consider that the correlation between a person’s height and a person’s gender is .71. This means that confidence is a poorer predictor of accuracy than height is a predictor of gender.

There’s been a lot of literature written on how the human brain isn’t as good as we think it is at recollecting things. And when it comes to deciding how accurate a memory is, jurors (whether they know it or not) apparently use a witness’s confidence as a primary indicator of the witness’s accuracy; this is a bad idea. That much I knew, but I didn’t know that it’s twice as lousy an idea as using someone’s height to predict their gender. There are tons of great pieces of research on this stuff.

This particular article is about how the human brain isn’t even good at remembering how confident it was when it remembered something.

It’s a good thing we didn’t build an entire legal system on the premise of eyewitness testimony. Things might get a little ugly in that case.

Published on under Legal Theory