Idiotprogrammer Blog

Category: Legal

  • Chevron vs. Donziger…. (continued)

    This 11 minute video from 2019 talks about how CHEVRON/TEXACO got away with not paying for a 9 billion dollar judgment against it for polluting Ecuador and never cleaning it up. The human rights lawyer who narrates this piece has been under house arrest by a NY federal judge for 1.5 years — despite protests from Amnesty International, 55 Nobel laureates, and Marty Garbus (the lawyer who argued for Nelson Mandela’s freedom, defended Ellsberg, Andrei Sakharov, Cesar Chafez) etc.

    From a recent interview with the head of Amazon watch:

    “The real thing that’s going on here is Chevron is attempting to literally criminalize a human rights lawyer who beat them. He’s never been accused, let alone convicted, of a crime anywhere. And now Chevron’s machinations by Lewis Kaplan, this federal judge, and Preska, the judge that he has appointed, are on the cusp of turning him into a criminal because he didn’t comply with Kaplan’s outrageous contempt of court orders.”

    And so, Steven Donziger, for Chevron, is a tactic. It’s a tactic for them to avoid talking about what they actually did, and have the world not look at what they actually did in the Ecuadorian Amazon. And what we want, as the human rights and environmental justice community, is for this new administration to check the corporate power that has manipulated the judicial system to turn Steven Donziger into an example of what will happen if you stand up to corporate power in the United States. And it’s a seriously chilling one.

    Democracy Now interview, March 15 2021

    An Intercept piece gives the full sordid history in the case.

    “On the basis of (Judge) Kaplan saying, ‘I believe this witness; I find Donziger guilty of the crime of bribery of the judge’ — on the basis of that, he’s been destroyed. That is the pinnacle element of all of the other claims against him. And if you take that one out, the rest of them — they’re just not there,” said Charles Nesson, an attorney and Harvard Law School professor. “He has effectively been convicted of bribery by the finding of a single judge in a case in which bribery wasn’t even the charge,” Nesson said of Donziger. “I teach evidence, that you have to prove what you assert. But the proof in this case is the thinnest.”

    Charles Nesson, Harvard law professor,

    I’ve looked at some of the briefs on both sides and the various judgments. The bribery/RICO charges seem wild and incredible; also, it seems ludicrous to apply RICO to a case where a lawyer is trying to fund a lawsuit by promising to the law firm a percent of the amount recovered.

    Leaving aside the case of Donziger’s arrest, several things about the case have been shocking:

    • Chevron’s attempt to change the venue from US and Ecuador and then after they lose after multiple appeals in Ecuador, they try to vacate the judgment through US courts:
    • The amount of money Chevron has paid in legal fees — and the legal tricks they have employed to drain the funds of the litigants and their attorneys. I saw one estimate that the amount of legal fees spent by Chevron to be over a billion dollars.
    • Kaplan’s judgement was shocking; but also shocking was that the judgment was upheld on appeal, and when it was appealed en banc to the 2nd circuit court of appeals, it was unanimously denied. Later, the appeal to the Supreme Court to grant certiori was denied.
    • After reading the evidence on both sides, I remain very skeptical that Donziger’s team was involved in any way in bribing the original judge in Ecuador. If anything, there was information sharing (sharing documents and undoubtedly copying and pasting parts of legal briefs). That is insufficient to establish a case of bribery, RICO and fraud. Donziger once said that sharing MS Word files was commonly done in Ecuador when drafting judgments. The Ecuadorian judge (who was actually well-respected in his home country and flown in to testify in the NY courtroom about how he made the decision) said that the case was gigantic and overwhelming, but he and his secretary did manage to draft the judgment without outside influence — though there was cutting and pasting where applicable.

    I have a small personal connection to the case. My dad worked for Texaco in the 1960s and 1970s, and once my dad bought me 2 shares of Texaco stock as a way to help me learn about the stock market. Interestingly I remember periodically receiving a glossy stockholder portfolio containing corporate information and financial disclosures. I didn’t really understand it, but I clearly remember that the brochure includes photos of oil drilling in Ecuador several times. In the 1980s my dad (who had become a lawyer) and I were both filing the Penzoil vs. Texaco case which Texaco ended up losing a 10 billion judgment for not honoring a contract between Penzoil and Getty. Texas was egregiously in the wrong, and in fact their legal defense team was incompetent as well (for not disputing the damage claim).

    In the 1970s Texaco was making a ton of money — and so were its competitors, but Texaco seemed to be the least law-abiding of the majors.

    Last Christmas I listened to an amazing podcast series Drilled, where a podcaster tried to follow the long history of the case and interview the major actors. I know a lot of this already (following this case was almost an obsession with me over the last 20 years), but the thing that surprised me the most was an interview with an expert on multilateral arbitration about how awful it is and how easily corporations can avoid the civil and criminal courts on the country level. (See this great interview on S5 E 4 “THE SECRET TRIBUNAL” Oct 16 2020 corporate wrongdoers evade enforcement and how it makes enforcement of environmental lawsuits practically impossible. It even grants to corporations remediation by the government for changing their laws about multinational corporations. Wow, how convenient.

  • Charleston Town Center Mall abuses private citizens!

    A few days ago an internationally known award-winning photographer was arrested for innocuous taking of photos (and allegedly resisting arrest). Gary Harki writes a great story of the incident.

    As it happens, this photographer was arrested once before – for taking photos of Bill Gates wedding from a public place. The photographer sued the major employer at the island and Bill Gates himself and ended up settling for a substantial sum about false arrest (which he donated to a local school to set up a scholarship fund). He ended up receiving an apology letter written by Bill Gates himself.

    Harki reports:

    Rensberger said he doesn’t know if he will sue the department over the incident.

    "I don’t think I have a choice," he said. "If this guy shows that kind of force to a guy who took a picture of a choir and of Santa and a uniformed police officer in the mall, then what kind of force is he going to show someone in a dark alley somewhere where no one was watching."

    That’s a lawsuit I’ll be watching for. Other professional photographers weigh in.

  • We need to compensate the Uighurs for ruining their lives

    My comment on the NYT about the imprisonment of the Uighurs. William Glaberson and Margot Williams have written a news report about the problem, and the NYT contains a  discussion about possible solutions.

    Why does  the US government feel absolutely no sense of urgency in solving this problem?

    It’s hard for me to understand why resettlement in the US is not a serious option.

    Even if it were not considered as a long term solution,  it seems ridiculous not to give them temporary asylum in the US while the government arranges someone to take them.  We created the problem; now we need to fix it.

    Having these people still in prison when there is no attempt to justify the cause flies in the face of core American values. Gitmo has ruined many people’s lives, and yet the US government feels no pressure to rectify this.

    The arguments presented here are academic and legalistic, but they are missing the point. The US government is devastating the lives of each individuals, and has no incentive to take action quickly.  The rights of these individuals matter a lot to me, certainly more than a flawed judicial process that the current administration owes no allegiance to.

    From a PR perspective, my solution is to pay each Uighur $100,000 for each year they have spent in Gitmo and offer the prisoners and their immediate family full citizenship as well as a written apology personally signed by Obama. If these people were released, aid organizations would step in to provide humanitarian assistance. This could turn into a modest success story. Why do we assume that these people could turn into terrorists/criminals? For all we know, they could contribute a lot to American society (perhaps offering insight into our own democratic system).

    The problem is that the American government pays no price for the continued detention of these people. Because of the legal morass, the tendency of the bureaucracy is to do nothing. That is a terrifying statement about our legal system. In the case of wrongful imprisonment, the government needs to be held accountable and needs to be liable for the lives it has helped to ruin.

  • Ascension Parish DA Screws up a Child Abuse Case..and a 13 year old girl dies

    Last week, I made a post about the 13 year old girl named Megan Leigh Crouch who committed suicide. Here is the video that the mother made about her:

    Apparently Megan Crouch’s mother has made a website about the injustice surrounding Megan’s case. Apparently, Megan was abused sexually at an early age by her stepdad. Even though the mother reported it to the police in Ascension Parish in Lousiana and even though the girl gave videotaped testimony, and even though the stepdad was arrested, and even though charges were filed, the man was set free after bail was paid by his mother. She writes:

    In January 2005 we moved to Kentucky. We decided that we were going to make a fresh start. Megan wanted to put the past behind her and move forward like a normal little girl her age. I agreed but also explained to her that we still had the upcoming trial. She said she understood but until that day she wanted to move forward without having to think about everything in the past. The DA’s office would schedule the trial and we would receive the summons for court only to be told days before the date that it had been canceled. This went on about 5 times. Each time this happened, my little girl was scared to death to face him in court and would work her courage up for it only to be let down again. It was devastating her.

    I was told by the courts that I had to let my ex see my youngest daughter because there were no charges against him for her, only my older daughter. I was forced to drive to Louisiana once a month for a two hour supervised visit with my youngest. Of course, I had to take both children to the visitations. I couldn’t leave Megan home alone. She had to endure taking her sister to see HIM! I was also told I had to let him call my house to speak to my youngest regularly. Megan sometimes answered the phone and had to hear his voice. I had no way to stop his calls or visitations. It was silently killing her and I didn’t realize how bad.

    In January of 2007 my ex didn’t show to reschedule the next trial date and a bench warrant was put out for him. The police and the DA’s office had his home address, all phone numbers, and his work address. He was never picked up. Instead, he has been walking the streets possibly molesting who knows how many other children.

    If this weren’t bad enough, this is how the mother was treated after Megan’s suicide:

    My ex called again a few nights later (Robert adds: after the suicide) and told me I was violating a court order by not letting him talk to Regan. When I told him she does not want to talk to him because of what happened to Megan his response was, “Megan didn’t shoot herself because I molested her.” He has accidentally admitted it to me on several occasions by things that he says when he’s angry. After he called, his mother called stating that I was violating a court order. My husband told her that until her sick son was put in jail NO ONE was talking to Regan. Her response was, “There isn’t going to be a trial now, charges will be dropped – Megan is dead!” After she called his sister called screaming that we were being rude to my ex and her mom! HELLO! WHAT DOES SHE EXPECT!?!

    I received a letter on the 25th of July regarding an upcoming “Status Trial” for August 28th at 9am. I took off work and drove down to Louisiana only to find out they had sent me the wrong papers. It was for another man with the same name. I sat in court for two hours to find this out. I met with the prosecutor on my case while I was there and found out that the bench warrant that was supposed to have been issued in January of 07 had NEVER been signed by the judge before it was filed with the court house. Another mistake made regarding the whole situation. Maybe if things had been done right from the beginning and my ex had been forced to stand trial within a reasonable amount of time then my daughter might still be here. I truly believe she needed closure and needed to see him go to jail for what he did. Waiting so long for justice silently destroyed her.

    Personal Note: I stumbled upon this youtube video quite by accident and another video by one of Megan’s friends. It is a shocking video to see because the presentation of facts is so straightforward. I have looked very skeptically at this video (as I do all Youtube videos claiming to be true). The basic facts check out about Megan’s death check out (see this obituary and this obituary). Also, I have exchanged a few emails with the mother, who seems credible and reasonable (as reasonable as you’re going to find under the circumstances). I have not talked with her nor have I met her, nor have I verified that these charges did occur nor have I made an attempt to hear the other side of the story. But it’s hard to believe a person would go to all this trouble to stage this kind of story. This story sounds very credible.

    Here is the problem. Megan’s mom is predictably outraged by how the DA office refused to prosecute the child abuser. She is outraged that the DA office kept telling Megan that the trial would come, and then it never did. Based on the mother’s account of events, Ascension Parish’s DA office deserves a huge amount of blame for the hell they put the daughter (and her family through).

    Once again, we are presented with these questions: a Louisiana man is charged with sexual abuse of a child. Why has it taken 4 years for this case to go to trial? Why should he have the right to see the other daughter (when there are allegations he abused her as well). Why is this man still free?
    13 year old girl who committed suicide in June 2008

    See also: my thoughts on the tragedies of dying young.

    Sept 1 Update: Apparently, the latest video names the person accused of child abuse. The person’s name is: Danny Dewayne Wallice

    April 18, 2009 Update. Unfortunately  I did not update with the latest news. Apparently, the mother’s video has now been removed from Youtube, and in December, 2008, the  judge refused to allow  the videotaped evidence Megan gave into the trial.   When I last heard from the mother, she did not know if the DA’s office would be able to continue with the trial.  I have had a brief email exchange with the mother, but nothing I can report here. Unfortunately, this may turn out to be one of those stories that never really ends; it’s simply a neglected case which the justice system didn’t get to.

  • Creative Commons, photos and flickr

    Here’s a reason not to use a liberal license on your photos. You might be sued.

    Lesson learned: merely because you have the right to use the photo doesn’t mean the model release has been signed.  Or that you have publicity rights.

  • Deferring to the Rule of Law

    Robert Jackson on the Nuremberg Trials:

    “The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.”

    (quoted by Chris Dodd in a Charlie Rose interview tonight).

  • When is public lewdness not lewd? Answer: when it’s police entrapment

    I don’t normally care about sex scandals with US Senators, but the Larry Craig incident reminded me of an incident that happened to a friend.

    Cats and Dogs doing it! Appalling!

    Larry Craig, for those of you who don’t know or care, was a Republican Senator who was trapped by an undercover policeman in a airport bathroom. His crime was tapping his neighbor’s foot in the adjacent stall, which apparently was a signal to engage in homosexual activity. Larry Craig pled guilty to avoid publicity, the charges were merely a misdemeanor, which in the U.S. is pretty much equivalent to a traffic ticket.

    When it was exposed, the Republican Party pressured Craig to resign, and Craig, while initially resisting, finally agreed. A few days later, he changed his mind again. He intended to appeal the initial guilty plea even though to do so is highly unusual.

    People jump to the conclusion that Craig’s motive was lewd and that Craig’s agreement to sign an admission of guilt meant just that..an admission of guilt.

    I don’t know if Craig was gay or if Craig intended to have sex with this stranger. But a few years ago a friend from the East Coast related a story that is strikingly similar.

    This friend (Let’s call him E.) worked with a small publishing company in the East Coast and was gay by his own admission. E. never advertised the fact, and in fact he never discussed it except among old friends. E. was not in a relationship at the time, but he visited a park known to be a place where gay men picked each other up. E. visited the park for precisely that reason (he later told me at the time). I considered E. a decorous and basically law-abiding person. Yes, this sort of hanky panky initially surprised me, but I knew that E. would have done it with maximum of discretion.

    E. stumbled upon a man whom he found attractive, and they struck up a conversation. They were both seated and talked for a while, and then in a somewhat forward gesture, my friend put his arm on the other friend. I can’t remember the specifics; maybe they were in some indoor part of the park, or maybe they were in a park bench; maybe they were standing; these details are not crucial to the story. I vaguely remember the policeman claiming E. touched him on the leg while E. claimed he touched his arm.

    At that point, the man showed his police badge and brought E. to the squad car to write up the citation. I can’t remember if he was actually under arrest. But my friend was absolutely furious; though he was certainly polite and soft-spoken and articulate, the policeman basically cut him short and told him to take it up with the judge. For E., the situation was a nightmare. He didn’t mind admitting he was gay to close friends, but rarely if ever publicized it or talked about it to acquaintances.

    I wasn’t there at the event, and I can’t read E.’s mind, so I really can’t say exactly what  may have happened. But even though E. was looking for some sexual dalliance, he would have never dreamed of having sex in a public place…and certainly with no one around. And yet the entrapment situation accused him of doing precisely that. E. felt convinced he was in the right…and I agreed. But the process of having to hire an attorney and debate it in a public courtroom was highly embarrassing to him. Later, E. learned the citation was only a misdemeanor and could be handled entirely through the mail. It would never appear on his permanent record. In other words, he could pay the fine and never have to worry about it again.

    So he paid the fine. Yes, he had to plead guilty. And yes, he wouldn’t have a chance to fight this injustice. But he recognized that the low cost of this offense decreased the incentive for people to fight the charge. He discussed the matter over the phone with me for about an hour, and my friend twirled around all sorts of arguments about the illegitimacy of the charges. He was furious and resigned…but still would not fight it. I urged him to write an anonymous letter to the paper or the City Council. But no, my friend thought it would be futile to do so. That area of the country was conservative, and besides, nobody has sympathy for people looking for quick gay pickups (even if their rights were violated).

    But imagine if the genders were reversed. Imagine the undercover cop were a beautiful woman hanging out at a bar or at an informal public setting like the beach. Imagine that this woman were especially friendly and responded to your attentions. If a man were to put his hand on hers or to touch her shoulders, isn’t that also public lewdness? I consider myself a sheltered person when it comes to sexual adventures. I honestly don’t know if pickups happen as often as people  suppose. But it certainly seemed reasonable to think that two ordinary strangers would touch one another on a first meeting in a public place; that didn’t mean they were intending to have sex on the spot! More than likely the real action would take place off in a car or an apartment bedroom. Maybe some people get off on doing it in public…and I guess that needs to be stopped, but in most cases, the culprits are not strangers but boyfriends and girlfriends having a crazy time.

    This raises an interesting question. Is there something lewd about groping in a car? Cars can be in public spots (on streets, for example) and yet be relatively isolated. Inside a car you have a degree of privacy while occupying a public space. And what about on a train or bus? It is confusing.

    The problem with the charges to Craig or to E. is that no public lewdness actually took place. All that took place is ambiguous touching. I believe police officers should concern themselves only with those people who are actually having sex (and where the evidence is incontrovertible). By stopping these entrapment exercises, one can avoid pointless arguments about what might have taken place and concentrate on what what did.

    Fun and embarrassing personal anecdote. After writing this, I just remembered a very embarrassing incident from my high school days. My girlfriend and I were — how shall I say? — affectionate sometimes in my car. We parked in remote parking spots and were paranoid about being caught. That never did happen except one time at the Rice University parking lot. A Rice U. police scared us to death by banging on my car window. Yes, he caught us in flagrante delecto. We were in the middle of — I kid you not — playing Dungeons and Dragons! We had our rulebooks and dice and graph paper laid out across the seats. Now at other times and places we did other things in that car, but on that occasion, we were playing Dungeons and Dragons and nothing else. (A geek girl who plays D&D was every man’s dream!)

    I don’t know what I found more embarrassing — being caught or being caught NOT making out with her. I think the police officer viewed me with pity.

    Postscript: Seinfeld describes the Larry Craig incident as one of the greatest things ever to have happened in the history of comedy.

  • Fair Use and Superbowls

    Is posting a 30 second clip from the Super Bowl on youtube to illustrate the NFL’s copyrighted terms of service announcement  an example of fair use? Probably.

  • Gun Control vs. the 2nd Amendment?

    George Will notices that a court case striking down Washington D.C.’s strict gun control law may finally be the test case that the NRA needs. Fascinating! (And it reopens a matter I thought had long been settled). Ultimately, Will makes a faulty comparison between the gun control debate and the political speech/campaign finance reform debate:

    Sound familiar? Defenders of the McCain-Feingold law, which restricts the amount, timing and content of political campaign speech, say: Yes, yes, the First Amendment says there shall be “no law . . . abridging the freedom of speech.” But that proscription can be disregarded because the legislators’ (professed) intent — to prevent the “appearance” of corruption and to elevate political discourse — is admirable.

    Wait, similarity in the motives of lawmakers is not the issue here; Gun control is a public safety issue; Campaign finance reform is not (and in fact, yelling fire in a crowded movie house is a case where public safety does trump free speech).

    I occasionally have read articles about gun control issues. So until I read Will’s column, I thought the matter was settled. Now I honestly don’t know. It would be nice to courts to provide clarity on this issue. If only to shut the NRA people up.

    Update: from Washington Post’s pingback feature I discovered The Nonsequitur , a splendid philosophy blog dedicated to unmasking fallacies in mainstream media.  Here’s the discussion of Will’s article.  My response to the NonSequitur people: lighten up! Will may reduce his argument for newspaper columns, but he does not consciously misrepresent scholarship. And he generally notices overlooked  issues, for which I’ve deeply grateful.  Yes, the snide tone does irritate me sometimes, but his opinions (albeit ideologically-driven at times) often bring me to make reappraisals. And that is a good thing.

    Update 6 years later: Boy, has my mind changed on George Will!  He’s a hack who has misrepresented the climate change debate consistently. I have totally changed my mind about him.

  • Creative Commons licenses: a discussion

    If you’ve reading this site for the last month or two, you know you gaga I’ve been going over the Jamendo music site.

    Here’s an enlightening discussion (with contribution from me) about the sticky question of Creative Commons licenses).

    My favorite remark:

    Giving artists the freedom to restrict music is like the freedom in giving a plantation owner the freedom to keep slaves.

    Yes, I know, restricting music it isn’t as evil as slavery (since slaves suffer). I have a shotgun, a burlap sack with heavy rocks and a deep pond waiting at the back of my yard for anyone who dares to point that out.

    The point remains: it is indeed a freedom, but it works by restricting the freedom of the music/slaves being controlled. And it deservedly prompts the question – should music/slaves be controlled?

  • EULAS, etc.

    Slashdot discussion of Cory’s denunication of shrinkwrap licenses. I’ve blogged about this a lot of times before. (see also www.reasonableagreement.org).

    Most original slashdot comment: ask a minor to click all your EULA agreements so none of them are legally binding. One pointed out the main motive for onerous EULA’s was not awarding of more rights but simply indemnification. That is too generous, I feel.

  • Not Blogging, But Writing–Dammit!

    I probably won’t be blogging here much for the next 2 weeks. The reason? I’ll be writing like crazy! Also, I’m working on a series for teleread about works intended for the public domain that never quite made it.

  • Being a Homeowner in Texas: Travails

    Randall Patterson wrote a great expose in 2005 of how Texas homebuilders use “mandatory arbitration” contracts to avoid responsibility for badly built houses:

    Jordan still remembers her pleasant illusions of arbitration—how much “more civilized and nice” it sounded than just suing someone, “like a mom who sits down with her children and says, ‘Now, this is the way I see it. Now you two go do what’s right.’”

    What she found instead seemed neither pleasant nor fair. The Arbitration Association informed her that she would be expected to pay half of the arbitrator’s fees— roughly $1,500 a day for the arbitration itself and $750 for a preliminary study of the problem—plus half of the charges to rent the hearing room and hire the stenographer; plus the cost of expert witnesses, if any; plus, if she wanted one, the cost of an attorney. Plus, since the proceeding would conclude all disputes against the builders, if she wished to file a counterclaim seeking reimbursement for the cost of her property, there would be an additional filing fee of $8,500.

    The arbitrator would be chosen from a list of lawyers and mediators. His decision would not be required to have any basis in law, could nowhere be appealed, and would likely come with a gag order. Jordan filed for hardship relief, but her builders’ lawyer, William S. Chesney III, insisted that she get none. She wrote long, emotional letters to her “solutions manager” at the arbitration firm, who shared them with Chesney and began sending her bills. It was like reasoning with a machine, she says, and in her letters and fliers she let the world know about her outrage—about the “shocking costs” of binding arbitration, the “stacked deck” of the arbitrator, that “henchman for torturing victims [of] the builders.”

    The homeowner Jordan Fogal wrote an update about the case in September, 2006. She has still not received the repairs. John Cobarruvias comments:

    It’s no accident that state legislatures have favored the homebuilders. The industry, whose primary goal is self-protection against consumer litigation, is one of the most powerful lobbying organizations in the country, and can easily outspend consumer organizations to gain unfair access to elected officials. it has also funded front groups such as Texans for Lawsuit Reform, Citizens Against Lawsuit Abuse, and Americans for Lawsuit Reform, and many similar organizations in other states, which act as surrogates for the builders while claiming to represent the interests of common citizens.

    Homebuyers incorrectly assume the biggest investment of a lifetime comes with adequate consumer protection. In Texas homebuyers like Jordan Fogal have learned that the laws have been so skewed in favor of the builders that a major defect can ruin a family financially, physically, and mentally. Yet state legislators across the country trust the homebuilders to advocate for consumer protection.

    Houston attorney Wendy Laubach has written about the dangers of foreclosures initiated by homeowner’s associations (HOA’s):

    Perhaps any decision to sue or foreclose on a homeowner should require ratification by neighborhood vote after disclosure of the circumstances. Would the neighborhood have voted to victimize a man in my client’s circumstances back in 1995? Or would it have voted to waive the legal fees accrued to that date (which, bear in mind, at that time consisted of the cost of prosecuting a lawsuit they hadn’t even yet properly served on the homeowner). This HOA didn’t even know he was ill when it sued him. It didn’t know anything about him. It didn’t check with his neighbors to see what the situation was. Why not?

    I asked, how could you sue him without even finding out why he wasn’t returning your letters? Why didn’t you know he was in the hospital? Their answer was, how could we possibly be expected to take the time the effort necessary to inform ourselves of the condition of all of our neighbors? Three-quarters of the residents of thisHOA don’t respond to their mail.

    Well, then, I say something’s really wrong. If the answer is“too much trouble and not enough time,” this is not a community-oriented organization that should be given so much power. If a community organization is worth protecting, preserving, and buttressing with extraordinary legal powers, it should be of the sort that identifies and helps people in my client1s circumstances, not puts guns to their heads.

    If it doesn’t, no amount of unproven “protection of property values” can justify its tactics.

    This article was written in 2000. Here is excerpts from Senate testimony by Laubach. Here’s a somewhat more balanced position about the issue by Christopher Durso. Durso argues that the threat of foreclosures is a red herring; the real threat is the imposition of penalty fines:

    All this might be fine, Haruff says, except it almost never happens that way. “What happens is, the actual foreclosure never comes to fruition,” Haruff says, “the reason being that the homeowner is intimidated and threatened with the loss of their home if they don’t pay the fine for leaving their garbage can out too long or planting a shrub that’s the wrong size.” If a homeowner ignores or overlooks the fine, an attorney usually gets involved, and next thing you know a $100 fine has turned into a $5,000 debt. “That’s where the problem really lies,” Haruff says, “in this intimidation and threats with these fines.” There’s also the fact, she says, that foreclosed homes are often sold for a fraction of their appraised value. It’s all too much, too fast.

    Haruff is echoed by Rob Edwards, a legislative aide to Texas Sen. Jon Lindsay, who chaired a subcommittee that heard testimony about association behavior. “I think what we found was that the actual loss of property was not a problem,” Edwards says. “What was a problem was the threat and subsequent attorney fees that accompany that threat that were a little out of line with what we thought was reasonable for associations.”

    Indeed, the more people you talk to, the more it becomes clear that the issue is less that association foreclosures happen; rather, it’s how they happen. In states that allow nonjudicial foreclosures, including Texas and California, the howls of outrage can be particularly loud. The perception is that associations use nonjudical proceedings—which are also performed by attorneys but don’t involve lawsuits or oversight by the courts—to railroad through foreclosure after foreclosure. But in fact, Meyer notes, associations usually use them because they’re faster than full-blown legal proceedings and cost about a quarter as much. They’re particularly attractive to associations on a tight budget. And the savings is even passed along to the homeowner whose house is being foreclosed on, because there aren’t as many attorney’s fees that accumulate. So in places like Texas, where you can go either way, which type is used more often—judicial or nonjudicial? “I’d say it’s a pretty good toss-up,” says Marc D. Markel, Esq., a partner with Roberts Markel Guery PC, in Houston. “A lot of people prefer judicial foreclosure because you have a judge looking over the documents.”

    Also, for Texas real estate nerds, here’s data collection and analysis of Texas foreclosures

  • How does Youtube do it?

    Surely you’ve wondered how Youtube a)makes money and b)avoids copyright infringement disputes.

    I’ve finally figured out what’s going on thanks to Fred Von Lohmann’s editorial:

    YouTube and its users may have a number of good copyright defenses. In my opinion, most of this video-sharing should qualify as fair use — after all, this is noncommercial activity (at least for the end-users), and a company like UMG may have a hard time proving that there is a realistic licensing market for amateur lip-sync videos shot by 14-year-old girls.

    Finally, because its systems are largely automated, it may be that YouTube simply hasn’t engaged in the necessary “volitional act” to cross into the realm of copyright infringement. (See CoStar v. Loopnet, 373 F.3d 544 (4th Cir. 2004) for a similar circumstance where an Internet hosting service was let off the hook.)

    But outside of law school exams, we’re not likely to see these difficult questions resolved because neither YouTube nor its audience can afford a courthouse showdown over every 3-minute homemade music video.

    I’m not sure this offers the blanket protections von Lohmann envisions. What if every day there were 50,000 uploads onto Youtube of the latest Lost episodes? It suggests to me that the Safe Harbor protections of DCMA could be weakened (much as I hate to imagine that) or that a pattern of infringement over time could produce inducement (and I think media companies could easily calculate how much ad revenue they are losing whenever YouTube features a bootleg copy.

    So far advertisements have not been placed on video pages, but look at this page. I’m guessing Fatboy Slim is a media property owned by Universal or at least a major label (sorry, I couldn’t sort through this). But on this page we have (at least when I was viewing it) advertisements for NBC’s My Name is Earl and The Office (NBC = Universal Music, if you didn’t know). In other words, YouTube is brokering some kind of deal with media companies to swap indemnity in exchange for a certain amount of free/discounted advertising. That probably underlies the recent deal with Warner Music as well.

    Music videos are a no brainer to bargain, because they are short and promotional in nature. But with 20 or 30 minute shows,  they are produced primarily for the commercials. Also, how does YouTube ensure that infringing videos use the right kind of ad? Perhaps they would offer a bounty to youtube surfers who find ads owned by a major media company (out of which the bounty hunter could take a percentage). The problem is: what if one of the major media companies decides not to play along (like Fox).  Can they aggregate multiple instances of copyright violation into one lawsuit?

  • Not Against the Law, Against the Law

    George Saunders reviews the reasons why publicly identifying contact information on the web is NOT against the law, even if it’s for reasons having to do with intimidation or protest. In the meantime, a judge overturns the Cleanfix “fair use” case, which allowed Christian moralists to sell DVD players which made it easier to censor out the dirty bits. (see my old post about it). Matt Yglesias weighs in.

    Random thought. Lately I’ve been working more on my laptop, and I’ve discovered one pleasure. Working on techie stuff while in front of the tv on the lazy boy chair. It’s comfortable.

  • Hideous Lawfirm Baker & McKenzie Pisses off Firefox Users.

    After laughing at the ridiculous warning letter from the hideous lawfirm Baker & McKenzie LLP , I noticed something strange on their home page. If you are using Firefox, you will notice an icon on the tab for IE explorer. In other words, some idiot copied the IE icon graphic and served it on every single page on the company’s website. This has to be the most incompetent thing I’ve seen. And isn’t  that like….copyright infringement?