Blog Ipsa Loquitur

The news story “rapist who acted as his own lawyer gets maximum sentence” may do a lot of things for an average reader. It can highlight the importance of effective legal representation. It can also highlight the importance of not raping people. For me, it’s an opportunity for jokes.

Because you know what they say…

“He who represents himself has a rapist for a lawyer!” No, hang on. ”He who rapes his lawyer has to represent himself.” Wait, wait, I’ve got it. ”He who has no lawyer has raped himself.” No, the second one was better.

Yes, that was inappropriate. But he has 156 years to write me a letter about how out of line I was.

The record companies have made headlines for threatening extremely high-stakes and time-consuming litigation against people who have illegally downloaded songs on the internet. The maximum statutory penalty is $150,000 per song you downloaded. At that rate, the record company’s offer to settle the whole kerfuffle at $4,000 seems positively like a bargain.

This strategy relies on the threat of a horrible outcome (downloading a single 12 song album leaves you open to as much as $1.8 million in liability) to prevent these pirates of the internet from attempting to defend their dastardly digital deeds in court. Do note that the record companies, despite the fact that roughly 800% of all albums in America are downloaded illegally, still have enough collective resources to make defending such a lawsuit extremely expensive.

But what if the tables were turned, and the record companies were staring down the business end of a high-stakes and painfully drawn-out lawsuit?

That is the litigation strategy that the New York Times refers to as Legal Jujitsu. (N.B. if you outlaw jujitsu, only outlaws will know jujitsu.) Instead of defending against a claim of copyright infringement, the strategy articulated by Harvard’s Professor Charles Nesson attacks the copyright holder’s enforcement of criminal statutes.

Professor Nesson spends a large part of his post pointing out that Joel [the college student who has been sued by the RIAA for copyright infringement] has less lobbying power in Congress than the record companies do. He argues to the court, on behalf of Joel, that Congress lacks the ability to place enforcement power for criminal statutes in private hands, and I would tend to agree:

Imagine a statute which, in the name of deterrence, provides for a $750 fine for each mile-per-hour that a driver exceeds the speed limit, with the fine escalating to $150,000 per mile over the limit if the driver knew he or she was speeding. Imagine that the fines are not publicized, and most drivers do not know they exist.

Imagine that enforcement of the fines is put in the hands of a private, self-interested police force, that has no political accountability, that can pursue any defendant it chooses at its own whim, that can accept or reject payoffs in exchange for not prosecuting the tickets, and that pockets for itself all payoffs and fines.

Imagine that a significant percentage of these fines were never contested, regardless of whether they had merit, because the individuals being fined have limited financial resources and little idea of whether they can prevail in front of an objective judicial body.

Just as a Congressional act giving private companies the power to write speeding tickets (and keep the money from the fines) should strike you as inappropriate, Nesson is hoping that the law giving record companies the power to enforce an essentially criminal statute strikes judges the same way.

Is this the sort of thing that scares record companies into settling faster than the college students they sue? As my Contracts professor used to say, “I don’t have the foggiest idea. But put enough money on the table in front of me, and I’ll argue either way.”

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I’m not really sure what to make of this. There are 17 million results for “should I go to law school?” and only 1 million for “should I go bankrupt?” “Should I go blonde” has more results than those two trifling issues combined.

I do like that “should I go out with him” has as many results as “should I go to (1) law school (2) medical school and (3) grad school” combined.

(Yes, you should go to law school. You will gain magical lawyer powers.)

This one comes from the “less than ideal litigation” department. The city of Batman, Turkey, is suing the movie studio responsible for the Batman movies. If you’re anything like me, your first reaction was likely “there’s a city named Batman?” And apparently there is, in the Kurdish section of Turkey. Your second reaction is “holy smokes, Batman! Whatever for?” if you’re a gigantic dork.

The lawsuit claims that using the town’s name without permission has led to psychological trauma for the town’s citizens, which has caused a high female suicide rate, as well as a number of unsolved murders. I’m interested to see how this works out. (Mostly because I’ve never actually seen a judge fall off her bench from laughing so hard.)

So the next time you’re feeling down, just think to yourself that it could be worse: you could be Batman.

The RIAA has spent millions of dollars on litigating copyright infringement suits against people who illegally download music. Companies like Viacom use litigation to remove their copyrighted material from sites like YouTube.com. And you can’t blame them. They don’t want their copyrighted stuff generating money for anyone else.

With their awesome size and economic strength, media conglomerates had it easy for a long time. Customers who wanted content had to consume it on terms dictated by the RIAAs and the Viacoms. With regard to delivering this content, (i.e. in CD format, or in the hour-long drama format) the conglomerates only had one another to compete with.

Oh, and then in 1993, Vice President Gore invented the internet or something, and the media conglomerates started buying antacids in bulk: because technology changed everything.

Today, technology (read as: the internet) allows you and I to deliver this content without having that whole awesome size and economic strength thing. I can infringe on Viacom’s copyright by making their content freely available for them. Viacom has to compete with me while I offer their content on terms I’ve dictated. (How about a .torrent of How I Met Your Mother in 720p in x264? Is that good for anyone else?)

So the Viacoms and the RIAAs tried using litigation to keep people from infringing on copyright, but technology has irrevocably shifted the supplier’s market to a consumer’s market. Consumers have too many options, and Viacom can’t just sue each one out of existence in a free society. And the RIAA’s attempts at litigating against individual users hasn’t gone very well, either. So what now?

Well, other media conglomerates like Universal and News Corp have started competing. It’s a tall order when your pirate competitors are offering your content for free, but sites like Hulu are giving pirated content a run for its dubloons money, offering free TV shows in exchange for 60 seconds of commercials. Online music stores simply price their digital wares well below the cost of a physical CD, and that makes headway.

As for Viacom? They’ve decided that if you can’t beat them (with a carrot tied to a stick), join them. Sick of seeing money float into Google’s pocket for all the copyright-infringing music videos on YouTube, Viacom has launched its own video site. It’s called MTV Music, and they’re following in the footsteps of other networks who are putting their content online instead of letting people like me do it for them. It has to be cheaper than litigating.

So what’s the first music video that I watched on MTV’s new site? Oh, come on. Do you really have to ask?

At my school, Constitutional Law is split into two three-credit classes. I’m taking the first one now, and the second one in the spring. I was terribly excited about the idea of getting to take Constitutional Law, because I’m kind of a big fan of the Constitution. I even read the Federalist Papers over my summer vacation in preparation for this class.

I mean, come on: it’s the United States Constitution! Forged in the blood of American patriots, tempered by a Civil War (sorry guys, but you started it), and majestically stuffed down the Soviets’ throats until they choked on it and stopped building nuclear missiles! This class is going to teach me how to recognize and fight (for the low low price of $300 per hour) oppression and disenfranchisement like Don Quixote, Esq., right?

Well, not yet.

As it turns out, in addition to the super romantic parts of the United States Constitution, there are some really really boring parts. For instance, you have to learn if Supreme Court even has the power to review the Constitutionality of laws. (Spoiler alert: yes, they do!)

Also on the syllabus are judicial concepts like standing (you can’t sue unless you’re the one who has been wronged), ripeness (you might be wronged, but there’s been no damage quite yet), mootness (you were wronged, but at this point, there’s nothing the Court can do to help), justiciability (something might need fixing, but a court is not the place to get it fixed), and so on and so forth.

Then we branched off into topics like the structure of the government: this whole state government / federal government dualism really never sunk in until this semester.

For instance, the federal government isn’t really all powerful. I had assumed that any time the federal government made a law, the State laws were overridden. Similarly, I thought that the federal government could pass any law it wanted to on any topic it wanted to, and it would automatically pre-empt all the laws of all the states.

(The folks who have taken Constitutional Law before are laughing about my fantasy version of America, where unicorns doubtlessly serve in the Senate, and pixies occupy key bureaucratic positions.)

Based on how we’ve read the Constitution over the last two hundred years, it isn’t so. You’ve got certain phrases buried in certain parts of the Constitution that have been interpreted to grant certain powers to the government. For instance, there’s the Commerce Clause, the Necessary and Proper Clause, the Taxing and Spending Clause, and a whole bunch of others.

So the interplay between the state laws and the federal laws is a lot more complicated than I ever knew. (Seriously, I don’t mind admitting my former ignorance, in part because I sincerely think it’s shared by most citizens.) When Congress wants to do something, it has to stem from one of those powers.

To take an example, the Commerce Clause gives Congress the power “to regulate commerce with foreign nations, and among the several states.” So Congress can theoretically take any action it likes if it does it as an exercise of its power to regulate interstate commerce. For instance, the Violence Against Women Act made it a federal crime to assault a woman, and Congress had to justify why they would make a federal law regulating (read: punishing) assaults on women.

The reason Congress came up with (which did not convince the Supreme Court, who held a significant part of the law unconstitutional) was that violence against women negatively impacts interstate commerce, because women who are the victims of violence are absent from work, and in a national economy, that means that interstate commerce will be affected.

In addition to the limits placed on federal power, there are grants of state power that actually preempt the federal government from regulating the states, even if the federal government has a good excuse.

Constitutional Law isn’t quite what I expected thus far. I had expected to learn a lot more about individual civil rights, but that’s kind of like saying that you expected to scramble the eggs before you cracked the shells.

It’s not as dramatic, but I have to say, it’s interesting to see how inordinately complicated the state/federal interaction is.