BC Law IPTF Blog

So I decided to re-write the BCIPTF Publication Agreement. One of the barriers to publishing articles on our journal is the pedantic process of getting the darn agreement signed. Wouldn’t it be great—instead of mailing a hard copy of the agreement (or burdening an author with printing it out), getting a signature, getting it mailed back, counter-signing, then sending a copy back—if we could do it over e-mail?

Funny you should ask.

Generally a signature is any mark by which a signee intends to be bound. In the old days, it could be an “X” or even in modern days an incomprehensible scribble. It was generally used as a hedge in support of a statute of frauds claim. Written by hand, there are some evidentiary tactics one can use to authenticate a signature—but in an electronic age, what do we have?

First, it has to be understood that a contract with a “real” written signature isn’t self-authenticating. A signature does not a contract make. Even though I have my own fancy, idiosyncratic signature, if I sign a contract with my non-dominant hand and misspell my name, I can still make that contract binding.

Therefore, there’s really no difference between me writing an “X” and calling it a signature and typing my name out on an electronic document. In either case, under oath, I would have to say, yes, I did sign it and mean to be bound by the agreement.

But then we shift back into the real world. Do I really think that a name typed into a word processing document binds me to a contract I want to sneak out of? No way!

Well, maybe. Few things in life are in a vacuum. So leading up to the digital signing of that DOC or RTF file, there’s a chain of e-mails that comprise negotiations. Then in the contract we specify:

Section 9(a)(i)(B) [T]he Licensor e-mails the Digitally Signed Agreement to the Journal from the Licensor’s E-mail Address to the Journal’s E-mail Address, both specified below, and within the body of the e-mail message types “I, [Licensor’s name], hereby accept the attached Publication Agreement.”

There, we have quadruple authentication: a signature on the electronic document, a chain of e-mails leading to an e-mail with an acceptance, a second typed signature in an e-mail, and then an “authenticating” e-mail address. If there’s author metadata in the document, then that’s just a bonus.

Taking a look at ALR: In Cloud Corp. v. Hasbro, Inc., the Seventh Circuit court of appeals ruled that the sender’s name in an e-mail was sufficient as a signature. 314 F.3d 289, 49 U.C.C. Rep. Serv. 2d 413 (7th Cir. 2002). Similarly, the First Circuit ruled in Roger Edwards, LLC v. Fiddes & Son, Ltd. that a chain of business e-mails referencing an agreement satisfied the statute of frauds requirement in Maine. 245 F. Supp. 2d 251 (D. Me. 2003). Part of the reasoning behind courts’ acceptance of electronic signatures hearkens back to days when a typed signature on a telegram was held sufficient for a contract. See Shattuck v. Klotzbach, 2001 WL 1839720 (Mass. Super. 2001).

So maybe this isn’t the *perfect* way of creating a contract. But it has to be weighed with the need for expediency in the larger system. And, as a law journal and forum, isn’t it part of our job to test the waters and try new things to push the edge of legal thinking and processes? BCIPTF was the first law journal to be completely on-line. We have to continue this tradition of keeping new and current in the face of uncertainty.

Update on The MediaDefender Debacle:

The Pirate Bay (”TPB”) announce on its blog that it filed a criminal complaint against MediaDefender’s clients, including Universal Music Group, Sony, Paramount, and Twentieth Century Fox. The charges are “infrastructural sabotage, denial of service attacks, hacking and spamming, all of these on a commercial level.”

TPB tracked back IPs from fake torrents to IPs in the Gmail account they hacked earlier. They also found MediaDefender’s software that creates fake accounts and seeds fake torrents on sites like TPB. Sounds like TPB might actually have some valid claims, at least against MediaDefender.

This could really turn into an extremely interesting case. More to come…

Hackers recently intercepted e-mails and phone conversations from MediaDefender, a company that monitors torrent tracking sites and seeds fake content to discourage illegal downloading. They purportedly did this by tracking down a MediaDefender plant in a torrent forum by the user’s IP, obtained his password for the forum, and then tried that password on his Gmail account… And voila! They had access to his Gmail, to which he had forwarded his work e-mail.

(I wonder if betraying his password would violate the torrent forum’s TOS—and whether the user might have a claim against them for that. For example, he accepted the TOS which formed a contract between him and the forum owners, and if they promise to keep his password secure, then they breached the contract… Then, damages?)

The leaked e-mails and phone conversation (the latter, a separate hack) revealed which sites MediaDefender “policed” and some conversations they had with the NY Attorney General’s Office about aiding the AGO with a child porn investigation. (Yes, more child porn on this blog.) Ironically, in the phone call with the AGO, MediaDefender stressed how secure their services were given the highly sensitive nature of the AGO investigation.

On top of it all, there’s evidence that MediaDefender created a fake torrent site, a “honeypot,” named MiiVi to lure and trap torrent users (from an ArsTechnica post):

A web site called MiiVi allegedly offered full-length motion pictures for download and offered to install special client software on the user’s computer to help speed up the downloads. However, the software did a little more than that: it also reportedly performed searches of the user’s computer for other illegal software and reported its findings back to MediaDefender. Acting on a tip from The Pirate Bay, the online publication ZeroPaid began an “investigation” (a followup to Torrent Freak’s article) and found that MediaDefender didn’t make much of an effort to hide who was behind MiiVi. The whois records for MiiVi were clearly registered to MediaDefender with the company’s address in California and administrative contact information within the company.

In reaction to this shit-storm, MediaDefender has sent cease and desists to at least MegaNova and isoHunt, to which they’ve responded derisively. From the ArsTechnica article:

[T]he isoHunt administrator says that the he will comply with the request if it is properly submitted. “Despite us being located in Canada, if you do actually figure out how to compose a valid DMCA notice, we will honor it,” he concedes, “just as soon as we’re done laughing at you.”  

“Dearest little asstunnels, Let me start off by thanking you for your pitiful attempt to have your e-mails removed from the entire internet,” Meganova’s response says. “In case you haven’t noticed, this site is located in Europe (I hope you can point it out on a map) where your stupid copyright claims have no base. But fair is fair you guys did suffer over the past week so here’s bit of advice to you guys: F*** you! F*** you again! F*** you again and again and again!”

Furthermore, MediaDefender has written to sites that have published the list of torrent sites they’ve been targeting, bullying them into removing the list.

Gotta love the drama. And asstunnels.

Looking at the Twitters, the Facebook statuses, the Tumblrs, and all the other micro-content services that broadcast your state of mind to your network, I can’t help but be nostalgic and hearken back to the we-knew-it-way-back-when of the .plan file.

Back in the day, when all you had was UNIX, and you used mh or mail or elm or pine to access e-mail, you could create a text file called “.plan.” Then, when anyone “fingered” you (similar, at least by metaphor, to the “poke” functionality in Facebook), they could see when you last logged in and what was written in your .plan file (and also your .project file).

If you were crafty, you’d run as a daemon “masterplan” which did a DNS lookup whenever someone fingered you (i.e., read your .plan file) and then tried to tell you what username fingered you and when. Masterplan ultimately died because of the number of DNS lookups it had to perform to determine your fingerer—it would take ages and bog down the system. (This was also possible back then because fingering was limited to user accounts on the same system. It wouldn’t work with the multiple servers and clients model of the current Internet.)

But the .plan and the .project had purpose: Really, what is your current “plan,” and what is the current, smaller “project” that you’re working on? It ultimately morphed into the “plan” being a quote from a song or some funny quip that communicated to the other semi-anonymous, obfuscated user (Who the hell is “97psh” or “burble chips”?) what your predilection of mood or drunkenness was at at the moment. It also worked because, unlike perhaps Twitter, you were *always* UNIX to read your e-mail. You couldn’t “background” the OS like you can close or background the Twitter Firefox window. It was more like your status while you were cruising around Facebook.

But just like .plan and .project had purpose, maybe Twitter or Facebook or Google Talk can have purpose as well.  It’s an area where you can tell people what you’re working on–and whether you are interruptable or not, in general, or for a specific purpose.

Working in a law firm, I keep track of my time by client/matter number. What if that client/matter topic was posted on a Twitter? Then when someone wants to contact me, say, by IM, they can mouse over my name and see that I’m working on a certain C/M. Then they can say, quietly to themselves, “Hey, I’m working on that right now, too, so maybe I should IM him now!” Or alternatively, “Eh, he’s working on something else, so maybe I won’t bug him now.” And then have an application—yet to be written—where it matches my Twittered C/M with every else’s Twittered C/M and shows me who else is working on my project at that time.

Great place for someone to build on Jabber for a law-firm specific IM system.

Just one of those things: I’m reading about Bougainville Province and their fight for autonomy from Papua New Guinea. Then I took a break to look up some Iron & Wine lyrics, for the song “Passing Afternoon.” The song goes, “She chose a yard to burn / But the ground remembers her / Wooden spoons, her children stir her bougainvillea blooms.”

Both the province and the creeping flowers were named after a French explorer, Louis Antoine de Bougainville. Bougainville dreamt of utopian paradise, away from civilization, free like the noble savages of the islands he explored.

The Iron & Wine song hauntingly takes to ask the story of a woman remembering her past loves, when life was free. Perhaps there is some hearkening back to the innocent utopia of Bougainville, as her “children stir her bougainvillea blooms” and she loses her wedding ring “somewhere near her misplaced jar of bougainvillea seeds.”

Bougainville Province, on the other hand, has less of an idyllic memory—what with war and revolution watering its recent history. Though there is irony in a Wikipedia quote where the Americans, while attacking Japanese troops in the province during WWII, left the enemy entrenched, “to whither on the vine” through starvation and disease. Perhaps on bougainvillea vines (though not native to Bougainville), or just listening non-stop to Iron & Wine (which didn’t exist during WWII).

This is probably an old story, but I ran across it while doing a Google search. At the bottom of my Google search, I saw this line:

“ In response to a legal request submitted to Google, we have removed 1 result(s) from this page. If you wish, you may read more about the request at ChillingEffects.org.”

The link takes you to this URL:

http://www.chillingeffects.org/notice.cgi?sID=937

Where Chilling Effects posts a letter to Google saying this:

Re: Transfer and removal of Blog
I have attached the court order which provides for the following:

The removal of all of the information about myself, and my companies from your search results.

The transfer of the blog known as MarkRoyAnderson, over to me and the immediate removal of that blog from your search engines. The reason that the blogname is being transferred to me, is so that it can not he used again by anyone but me.

I have already set up an account with the blogspot.com. It is under the name [private]. With my email address “[private]”

Let me know how we can get this coordinated so that this can get done once and for all. This court order is to be effective immediately.

Sincerely
Mark Anderson [private]
Email: “[private]@aol.com”

Looks like a fellow named Joe Gallant took it upon himself to research a venture capital firm named “Summit Ventures.” He found out that the owner, Mark Anderson, may have been sentenced for securities-based mail fraud. (You can read Joe Gallant’s blog, archived at the Internet Archive.)

The small claims court then ordered Joe Gallant to transfer ownership of markroyanderson.blogspot.com to Mark Anderson, remove the domain name, and then enjoined Google from displaying search results referencing: “MARY ROY ANDERSON, CAMDEN HOLDINGS, SUMMITT VENTURES AND SUMMITT OIL AND GAS INC.”

Looks like from the SEC filings that Mr. Anderson and his various companies were trying to enter into investment deals and “misrepresenting” and “non-performing.” See this 8-K filing.

Interesting that a California small claims court can wield such power over terms and searched on the Internet. It effectively removes from the Internet–by removing from Google search results–public information such as SEC filings, and not just Gallant’s blog-with-a-grudge.

Regarding the SEC filings: how else would you find this information? I suppose you could go straight to the SEC web site. I also wonder if they’re on Yahoo! or MSN or other search engines. If someone can monopolize access to certain information by having them removed from search engines through the small claims court… Where are we?

I don’t consider my setup that “unique” in that it would differ greatly from what I would regularly use. But there are nuances that help me with my legal work that I’d like to document.

Del.icio.us

You *should* use Google as your first step in researching an issue. It’s fast, free, and helps you get background and narrow your research tasks. And as you use Google, you run across web pages that need to be bookmarked for later reference (or citation). You need a bookmark manager that you can access across computer (at work, school, and home) that allows you to describe, tag, and find your saved bookmarks. That’s what del.icio.us is for. You can see an example of how I used it for some of my corporate research.

The problems with del.icio.us are numerous, though. The tagging functionality is too basic: you can’t have multiple words in a tag (e.g., “Rule of Law” has to be RuleofLaw or ruleoflaw), you can’t browse on multiple tags (e.g., I want all bookmarks tagged “work” and “afghanistan” because I have bookmarks tagged “education” and “afghanistan” that I don’t want to see). It also can be slow. And it’s not private in that I can’t tag my bookmarks with a client name.

Also, I should note that Zotero (a free Firefox plugin) has awesome capabilities for this type of thing. It’s specifically made for academic and legal on-line research. I’d use it more, but for me, right now, it’s a overload. Del.icio.us, while technically and functionally lacking, does what I need simply and fast.

Firefox

Tabbing in Firefox is crucial. Tabs are the step before bookmarking—you “save” searches and web pages as tabs in the background while you’re browsing other branches of your thought-process. The plugins and bookmarklet support are crucial (see Zotero and del.icio.us above). Also, it “works around” some of the little things that Westlaw and LexisNexis do with Internet Explorer that can slow down your research and make it more expensive. (I don’t know 100% because I pretty much use Firefox all the time, and the few times I have used IE I’ve experienced frustration with what I can’t do.) You can open up multiple Results from searches in multiple tabs and browse them all at once, instead of one at a time. You can background Results pop-up windows. I think you can print from the browser in some instances where you can’t with IE.

Launchy

Launchy replicates the functionality of Mac’s Quicksilver or Spotlight onto the PC. I hit alt-space and a translucent box appears in the middle of my screen. I start typing the name of an application I want to launch (e.g., f-i-r, and it finds Firefox, and I hit enter to launch it), or a Firefox bookmark (e.g., w-e-s and I get my Westlaw bookmark), or a filename or folder, or I start typing in a math calculation (e.g., 162/6, and I get the my billable hours for a project), and Launchy finds and executes it for me.

Freemind

Freemind is a mind-mapping tool that makes nice charts and graphs easy to make, but it’s also great for note-taking. Let me tell you, it’s a lot better than Microsoft Word for outlining your ideas. And when you create presentations with this people always ask, “Does PowerPoint do that? How’d you make it look like that?” To which you answer, “No, and I can’t tell you.”

Here’s a mind-map that I just created about Demand Resources in energy auction markets:

Use a Wiki

I use my own personal installation of MediaWiki, but I have used hosted services like the excellent PBWiki. It basically use it for to-do lists and for notes that I want to access and edit anywhere in the world. They’re not super-fancy, but they’re functional and fast and easy to use. You can collaborate via them, but I don’t.

Google Desktop Search

I save nearly all my cases as PDFs onto my hard drive for later reference. With Google Desktop Search, you can search all these PDFs. Very useful.

I’ve recently been using del.icio.us a lot in keeping track of bookmarks for my legal research at work. When you’re doing Google searches all over the place, the bookmarking in-browser isn’t sufficient. Yes, you can put bookmarks into folders. But you don’t get the snapshot view that you can create with the description and tags in something like del.icio.us.

So, for example, I have a list of bookmarks I’ve saving for the corporate work I’ve been doing lately.  Pretty nice, if you ask me.

I’m not sure, though, if del.icio.us is the best bookmark manager. I think the code is a bit clunky, and it’s made to be a social bookmarking tool—and I’m doing nothing social with this. I use edtags.org for my law school and education-related tags, for bookmark managing and for the social aspect, but I don’t think that bookmarks on corporate and real estate law would be of interest to teachers.

While researching the exceptions to non-competition agreements in California, I came across this exception:

16603. Every person who, as a condition to a sale or consignment of any magazine, book, or other publication requires that the purchaser or consignee purchase or receive for sale any horror comic book, is guilty of a misdemeanor, punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.

This section is not intended to prohibit an agreement requiring a person to purchase or accept on consignment a minimum number of copies of a single edition or issue of a magazine or of a particular book or other particular publication.

As used in this section “person” includes a corporation, partnership, or other association.

As used in this section “horror comic book” means any book or booklet in which an account of the commission or attempted commission of the crime of arson, assault with caustic chemicals, assault with a deadly weapon, burglary, kidnapping, mayhem, murder, rape, robbery, theft, or voluntary manslaughter is set forth by means of a series of five or more drawings or photographs in sequence, which are accompanied by either narrative writing or words represented as spoken by a pictured character, whether such narrative words appear in balloons, captions or on or immediately adjacent to the photograph or drawing.

This definition of “horror comic book” would probably include most comic books out there, at least not the ones written specifically for children. I wonder what the history of this Code provision is.

Let’s not make this a trend, but here’s another sex-related IPTF story. Yes, the infamous WTS (”Willing to Sell”) Epic Mount story.

Now, in the MMORPG World of Warcraft players of a certain level can earn “mounts” or animals they can ride so they look cool and move faster in the virtual world. Problem is, they’re hard to come by–they’re extremely expensive. So a presumably female WOW player posted on Cragslist, offering to sell her “services” for an hour for 5000 gold. (Today, 5000 gold could cost around US $685.) An epic mount for an “epic” mount, get it? Haha. Hahaha.

So the next obvious question after “Isn’t this illegal?” is “Is this a taxable transaction?” Here’s a Howstuffworks article about taxation of virtual assets.