Posted 01/07/2009 at 11:08:39am

I don't think there's much of a case there.  Defamation can't be based on opinions, which are most of the statements.  The only factual statement appears to be referring to her as "fortysomething" when she's actually 36.  Even assuming that this statement has a tendency to harm her reputation (a requirement of defamation, and a dubious proposition), the plaintiff is a public figure.  This means she must prove that the misstatement of fact was made maliciously, which in this context means a deliberate falsehood or with reckless disregard for the truth.  Both of those are tough sells.  Even if she wins on the merits, I doubt there would be anything more than nominal damages.

Granted, that analysis goes for the substantive claim, not the question of revealing the blogger's identity.  But I think a court would have to look at the strength of the case as a whole when deciding whether to compel Google to disclose the blogger's identity.  But then, that's not an area of the law that I'm all that familiar with--perhaps someone else has more to say.

Posted 11/24/2008 at 07:55:05am

Let's be clear: we're not talking about trial yet, we're talking about discovery.  It's highly unlikely that this will ever get to trial.  Even if it does, it will be quite a while.  This is just a deposition.  It's under oath, true, and there are circumstances where portions can be used later at trial, but it's usually more of a general information gathering session than anything else.

Posted 09/24/2008 at 11:10:41am

Tgdaily's article isn't accurate.  Jackson, Wyoming has already rolled out a WiMax system: 
http://www.engadget.com/2008/07/01/first-us-wimax-deployment-goes-live-in-jackson-hole-wyoming/.

Posted 12/06/2007 at 10:20:25am

Just to be clear, the DOJ doesn't get to say what's constitutional and what's not. In fact, it doesn't appear that it's a party to this lawsuit. Third parties can often file briefs on appeal supporting one side or another in a legal case. The PC World article isn't terribly clear, but it appears that's what happened in this case. In other words, the US Attorney's office for that district is throwing its hat in with the RIAA, but the court still hasn't made a ruling. It's likely to be quite a while before we know for sure.

Posted 12/01/2007 at 10:25:36am

Full text has its uses, but I think sometimes the efficiency of the traditional research tools gets short shrift. I've always found West's digest system--both on paper and on Westlaw--to be extraordinarily useful for finding issue-related caselaw. I generally use text searches to find particular language i want to use. I hope that Altlaw.org is able to incorporate some sort of subject-based search system, though considering the amount of work it seems unlikely. Possible, though, with some sort of supervised wiki system. I'd want to be careful until the site was quite mature. Of course, for other tasks, like ensuring a case is still good law, online methods are the only reasonable way to go. As for the previous comment, I'm afraid your question really calls for legal advice, and so most people in the know probably wouldn't answer, even if you provided enough facts to give a decent answer. It's rather important to avoid accidentally creating an attorney-client relationship, particularly where the possible client is in a jurisdiction in which we're not licensed to practice. Those other states tend to get feisty about unauthorized practice of law.

Posted 10/08/2007 at 07:06:41am

Here's a critical question: Did the defendant object to the jury instruction? If not, the issue is ordinarily waived, and would foreclose any argument on appeal. It would still be open for the next defendant, but this one would be out of luck. It's one of those little legal twists that can keep an interesting issue from being decided for quite a while. But I don't know if it's different in MN state court or on the 8th Circuit (whichever hosted this little party--that's not clear to me from Murph's post) than the courts I'm familiar with. Perhaps they're more lenient about that sort of thing.

Posted 10/07/2007 at 09:04:03am

There's a critical difference between soliciting sex online and copyright violation. First, note that while most of the TV busts may be thrown out, state and federal governments frequently and very successfully engage in similar sting operations. But more importantly, the crime in those cases is usually solicitation of sexual activity with a minor. In other words, they are being charged with a not-quite-completed (in legalese: inchoate) offense. RIAA lawsuits are fundamentally different: they're civil suits, not criminal. And the civil world generally does not have a general inchoate liability. While there are some exceptions, they are just that: exceptions. Generally, a party must prove each and every element of the claim: just trying to do something isn't enough. So Erin's argument might be a valid one on appeal (should they choose to do so). Essentially, it would be that there is no way a jury could have found all elements of the plaintiff's case were met. Of course, this would probably fail. There really has to be absolutely nothing in the facts of the case that would allow a jury to make a finding, and that's an extremely high bar. Since the jury could infer from the fact that she opened up her computer that someone dowloaded the songs, I don't think it would fly. Also, as a matter of trial strategy, that would probably be a hard sell to a jury, but that's a choice that's best left to trial counsel who has a chance to interact with the jurors. Caveat: all I know about the case is what I've read here, and I'm just speaking generally.

Posted 09/24/2007 at 07:35:09am

I suspect they know that they will probably lose. Of course, one never knows what will come out in discovery, but it would be an awful tough case to win. Telecommunications are traditionally highly regulated, but it's still a rather large step from that to a court imposing a different business model. Congress could pull it off (because of its regulatory powers), but I tend to doubt that the courts will go in that direction without some pretty stunning facts.

Posted 09/02/2007 at 09:27:10am

In the United States, all searches must be authorized by a warrant or an exception to the warrant requirement. In drug cases, dog sniffs do not qualify as searches because they reveal only contraband, and nobody has a reasonable expectation of privacy in contraband. (Note that individual states may be more protective of individual rights when they apply their state constitutions.) But if these dogs cannot distinguish between pirated and non-pirated DVDs, I suspect that their sniffs would be considered searches. In that case, officers would need to have either a warrant or some exception to the warrant requirement. Two likely exceptions that come to mind are exigent circumstances ("The evidence will disappear if we don't search now; no time to get a warrant!") or consent ("Mind if the dog takes a sniff?"). We'll see how it all works out.