Blog Ipsa Loquitur

Published on under The News

Marco Arment on how the Apple victory really doesn’t break Samsung, Android, or the prospective consumer’s back:

Apple’s claims from this case aren’t very far-reaching. What they won, effectively, is a weapon to use against anyone who copies a narrow set of behaviors, appearances, and packaging designs.

If Samsung wasn’t so blatantly idiotic about copying so much from the iPhone, Apple wouldn’t have won so many of their claims. In fact, Apple lost most of their more generic, less-blatantly-copied iPad claims.

Sober and well-reasoned as always. I think he’s a little generous to call the iPad claims generic; while Apple won on claims 1-3 here, they lost on the laughably broad claim 8 regarding tablet designs. Sure, everyone decided to do slim tablets with no features but a single button and a pane of glass after the iPad, but a patent to that effect is stupidly broad.

Published on under The News

Three days was more than enough for a jury in the Northern District of California to find Apple’s patents valid, to agree with Apple’s claims that Samsung willfully infringed on those patents, and to sentence Samsung’s legal team to fifteen years hard labor in the spice mines on the prison planet Kessel. Maybe not that last bit.

The long list of infringing Samsung devices will cost $1 billion, and open the door for Apple to continue its legal strategy against Samsun. The Verge’s Nilay Patel has consistently had the most cogent and readable legal analysis of this case, and he sums up the next steps:

In the long term, we’re sure to see lots of UI behaviors change across Android — most companies have already moved away from the bounceback scrolling behavior protected by the Apple patent in this case, and we’re sure to see tap-to-zoom and multitouch scrolling behavior affected on new devices as well. We’re also sure to see new handsets adopt highly differentiated designs, as Apple has proven both its design patent and trade dress claims are strong enough to persuade a jury.

That’s already happening, and it’s a good thing; Samsung’s the only phone maker Apple has sued for copying the iPhone’s design, and its more recent devices like the Galaxy S III already have unique designs. More differentiation in the market is ultimately good for consumers.

Alternatively, as Patel points out, maybe Google ponies up the money and just licenses the rubber-band snapping thing from Apple. I imagine that’d carry a stiff price tag by now, though. Vendors like Nokia and HTC have already moved to different hardware designs, and it was mostly just Samsung shamelessly aping iPhones.

Either way, Apple’s gonna make it rain injunctions on Android phones, now that a jury has found them valid. Samsung shot a lot of folks in the foot just now.

Published on under Legal Theory

From the New York Daily News comes this salacious suit:

The family of a Georgia man who died when his heart couldn’t take a three-way sex romp was awarded a hefty $3 million payout by a jury, according to reports.

William Martinez’s estate was originally seeking $5 million in a medical malpractice case that claimed a cardiologist failed to warn the 31-year-old to stay away from physical activity. While Gwinnett County jurors sided with the family Tuesday, they agreed to a lesser amount after finding Martinez was 40% liable for his own death, the Atlanta Journal-Constitution reported Wednesday.

Martinez, a husband and father of two, was engaged in a threesome with a friend and another woman who was not his wife, according to the newspaper. He died March 12, 2009.

Oh, you say she’s just a friend / you say she’s just a friend / Oh baby youuu~ got heart disease. (It totally fits the meter, if you torture it enough. Trust me. Or don’t. Shut up.)

Now, all joking aside, this sucks. Not just because I’m almost 30, and the idea that I need to start associating sex with “potential cause of death” is disquieting. It’s always a tragedy when a guy dies and leaves behind a wife and kids. I imagine this loss will be somewhat mitigated (eventually) by the fact that he apparently wasn’t a terribly good husband. But still. This sucks. And then it shows up in some crap paper in New York City, where a bunch of jaded straphangers will have a chuckle at your expense. And then, even worse, some jackass with a blog makes a Biz Markie joke at your expense.

But, Dear Reader, there is a weird legalism going on here. What the hell does it mean that a jury found Martinez 40% liable for his own death, and the doctor 60% liable? Is that even a thing? Isn’t it guilty, not guilty, or not guilty by reason of insanity?

Civil Actions for Uncivilized Acts

Most folks are probably aware that when one person sues another person, it’s a civil matter and not a criminal matter. If you did something which upset someone enough that they file a lawsuit, it’s a civil action. If you broke the law, even if the person you wronged isn’t really upset about it (think every episode of Cops where someone yells “No officer, I don’t wanna press charges!), the government has lawyers whose job consists of filing a lawsuit against you in the name of the government; these are criminal actions.

No matter how egregious the civil charges, if they’re just civil charges, you’re not going to jail. There’s no “guilty” or “not guilty” – you’re just liable for the damage you allegedly caused, or not liable. Negligently driving your car into the side of someone else’s car, intentionally punching someone in the nose, or manufacturing a chainsaw which shatters and injures its user, are all pretty law-school-exam archetypes of things (called “torts”) you can do to get slapped with a civil lawsuit.

As it happens, negligently driving your car is probably a crime wherever you are; ditto for intentionally punching someone. You can be prosecuted by the local DA for doing those things, and then when you’re done, you could face a civil lawsuit for the same things. And they’re completely separate things. Remember OJ Simpson? He ended up being found not guilty of the criminal offense, but liable for the civil offense.

Spreading the Blame

So what does this matter to Martinez’s doctor? Well, he’s not going to jail for his client’s threesome mishap. That’s got to be some good news. And he’s not 100% to blame for his patient dying. So that’s handy, too. But the article says that the doctor’s jury decided that Martinez was 40% at fault in his own death. What does that even mean? Either you negligently drive your car or not, right?

Negligence actions are, at base, a failure to perceive a risk of harm which a reasonable person would have recognized and changed course. It’s possible for the victim to also have failed to perceive the danger in his or her own actions, and for both parties to have been negligent in their own way. Sure, I might have hit your car because I was driving negligently, but you were texting instead of checking your mirrors. Martinez’s doctor failed to give his client an adequate picture of his health, but Martinez knew he had a heart condition, and still engaged in a strenuous activity. There was blame on both sides.

Ideally, the jury understood “blame” is about how much risk of death Martinez accepted by disregarding his doctor’s advice; blame in this context is not a simple retributivist moralization along the lines of “well, you were a crap husband, so you kind of deserved whatever bad came your way.” Civil suits aren’t about good and evil, with only virtuous plaintiffs recovering money and anyone who’s not a lawful good paladin getting stiffed out of their medical bills. Negligence in particular is just moving money around from people who cost folks money through carelessness to the folks who suffered expenses from said carelessness.

There is an “Outlaw Doctrine” that does bar criminals from recovering for the negligence of others if the criminal was injured during the commission of a serious crime. And while adultery is actually illegal in Georgia, I imagine that doctrine is more for the bank robber who trips on a loose rug, throws his shoulder out when he lands on his shotgun, and sues the bank.

Comparative Negligence

When a negligence suit brings up the negligence of the victim/plaintiff as well as the defendant’s, we’re examining comparative negligence. Different jurisdictions have different rules for what happens when a victim isn’t completely free of blame in a negligence action.

Contributory Negligence

There are only a few states which recognize this theory anymore. Essentially, if the plaintiff’s negligence contributed in any way to his own injury, he is barred from any recovery whatsoever. This is kind of senseless, because even splitting blame 99-1 with the defendant means the victim is completely out of luck.

Comparative Negligence

Just about every state applies this theory. In cases where the plaintiff was partially to blame, his damages will be reduced by the proportionate blame he bore. Was it 2/3 defendant’s fault and 1/3 plaintiff’s fault? Now plaintiff only gets 2/3 of the damages he asked for.

There are a couple of sub-varieties of comparative negligence, because the bar exam would be easy if the law weren’t a bunch of rules with exceptions and exceptions for the exceptions.

Pure comparative negligence is the rule I articulated above. However, that leads to a silly situation. What if, after a trial, a jury decides the victim was 90% to blame, and the defendant was 10% at fault? Well, the plaintiff only collects 10% of the damages he asked for, but that kind of rubs some people the wrong way. Why should the guy who was mostly at fault get any money at all?

Modified comparative negligence is the solution to that. If the plaintiff is not 50% (or more) at fault, he collects proportionally, but as soon as it’s a 50-50 proposition, the lawsuit’s off and nobody pays anybody. The plaintiff doesn’t have to be perfect, but he does have to be less blameworthy than the defendant to collect.

There are other fun questions, such as what happens when there are multiple defendants, and the plaintiff is more at fault than some but not others, and so on. O lawyerdom, what hath we wrought?

But What About the Doctor?

So Georgia’s definitely not a contributory negligence state, because the victim was 40% to blame but the doctor still has to pay. And you can see why contributory negligence is so harsh: even if the doctor is mostly to blame, the slightest negligence by the victim means he’s out of luck.

In this case, the doctor apparently told Mister Martinez that he had a bad heart, so Martinez is partially to blame for his own death. Presumably, the doctor warned his patient not to partake in particularly strenuous activity; one imagines that the first question Martinez might have had (unless he was a marathoner) was “what about the bunga-bunga?” Now, all open-mic-night-jokes about marriage and the lack of intercourse therein aside, what the doctor told Martinez was apparently enough to offset some, but not all the blame of Martinez’s death. It was a reasonably good warning, but not great: the doctor is still 60% to blame.

Of course, I’m virtually certain that Martinez didn’t say “hey, Doc, I’m about to sleep with two women at the same time, neither of whom are my wife. Think my heart’s up to it?” By failing to give the doctor enough information to give Martinez a better shot at living, Martinez kept his family from recovering more money after his untimely and salacious demise.

And of course, there are the actual questions of whether a reasonably careful (i.e., not malpracticing) medical professional would have understood that Martinez’s heart was in such poor shape, etc. Malpractice is messy and relies on emotionally manipulable juries. It’s so fact-heavy that there’s really no point in breaking down the rules governing it.

The part about a guy being 40% liable for his own death after having a heart attack during a threesome with two women who aren’t his wife? Now that’s just crying out for comedy legal blog jokes.

Published on under Irreverently Irrelevant

Giancarlo Esposito, who plays Gus on one of my favorite TV shows Breaking Bad, was in beautiful New York City recently, and had a run-in with the police. They were apparently not fans of his work:

Days before the interview, Esposito was stopped and frisked by New York police while walking out of a theater where he was rehearsing a play. After several frantic minutes – with him and officers screaming, and their guns drawn – they realized they had the wrong guy. Their suspect had a hoodie, and Esposito was wearing a suit. When it was over, one of the officers recognized him, from his recent turn on ABC’s “Once Upon a Time.”

You know, Breaking Bad would be over after like the second episode if it took place in Manhattan instead of Albuquerque. Oh, and if Walter White were black, apparently. (Kidding! Kind of.)

Published on under The Digital Age

The Chief Research Officer for F-Secure, an antivirus firm, has written about the newest confirmed tool in America’s cyberwarfare arsenal, Flame. He says:

Antivirus systems need to strike a balance between detecting all possible attacks without causing any false alarms. And while we try to improve on this all the time, there will never be a solution that is 100 percent perfect. The best available protection against serious targeted attacks requires a layered defense, with network intrusion detection systems, whitelisting against known malware and active monitoring of inbound and outbound traffic of an organization’s network.

This story does not end with Flame. It’s highly likely there are other similar attacks already underway that we haven’t detected yet. Put simply, attacks like these work. Flame was a failure for the antivirus industry. We really should have been able to do better. But we didn’t. We were out of our league, in our own game.

Read the rest at Ars. It’s not a boilerplate mea culpa, at least. The authors of Flame used very sophisticated methods with zero-day exploits, including spoofing Microsoft’s signature on security certificates. There’s nothing on the planet that can reliably keep your system safe from that sort of thing, and he admits it. I can’t quite decide if that’s refreshing, scary, or both.

If you’re not up to date on what Flame is, there’s a nice post in Wired all about it.

Published on under A Day in the Life

“It was the first time in my career, my life, I realized someone could go out — and I probably shouldn’t say this with the press here, but — no, but it’s more important. You’re more important. For the first time in my life I understood how someone could consciously decide to commit suicide.”

“Not because they were deranged, not because they were nuts; because they’d been to the top of the mountain and they just knew in their heart they’d never get there again, that it was never going to be that way ever again. That’s how an awful lot of you feel.

VP Biden, talking with a support group for friends and families of military service members killed in action. Biden’s wife and daughter were killed in a car accident in 1972, and he understandably went through some dark thoughts afterwards. You know, for being The Onion’s favorite target (and not undeservedly so; the guy does say some interesting things), this is actually really touching and poignant.