Global Thermonuclear Lawsuits

I've been following Apple's lawsuit against ThinkSecret with interest. As Donna Wentworth so eloquently states in 'EFF to Apple: Back Off', there are differences between each case, both between the kids being sued in the ThinkSecret case, and the kids being sued for leaking a Tiger build onto the internet, but it's interesting to note how they all came about at around the same time. As someone once said, it might be "too coincidental to be a coincidence."

If you didn't catch it, the author of ThinkSecret, Nicholas Ciarelli, gave an interview to his school newspaper (Harvard), and has since been in an article requesting funds to help get representation. I.E., legal aid, which will probably mean donations. It also came out that he started the site when he was 13, is now 19, and lived with his parents until last fall.

Apple is also suing someone for allegedly leaking some details of Asteroid, a firewire break-out box, whose identity or ages aren't known. But when we wrap in Nick's age we're left we defendants who are: 19, 21, 22, and 22. Three are at colleges in some form, one lives at home. And you've met Sunny (Desicanuk).

The Electronic Frontier Foundation is representing the two other sites mentioned in the ThinkSecret case (PowerPage and AppleInsider), as they are not actually being sued, but instead are being subpoenaed for their sources in another case where they are suing another twenty 'John Does', as they state in their release:

"Bloggers break the news, just like journalists do. They must be able to promise confidentiality in order to maintain the free flow of information," said EFF Staff Attorney Kurt Opsahl. "Without legal protection, informants will refuse to talk to reporters, diminishing the power of the open press that is the cornerstone of a free society."

"I am very disappointed by Apple's behavior and its new policy of issuing legal threats to its best customers," added Jason O'Grady, publisher of PowerPage. "Is corporate paranoia really more important than the First Amendment?"

The EFF thinks this is a first amendment issue, which I'm inclined to agree with. It comes down to whether or not websites (and perhaps blogs) can be considered to be press at this point and in the future, as Donna Wentworth eloquently states in her Copyfight article. That's the sort of thing the EFF does, and part of their charter. Unfortunately, there are things the EFF doesn't do, which is why they're trying to find the author of ThinkSecret counsel but aren't representing him.

To be honest, I don't fully, or even slightly, understand the grounds for Apple's lawsuit against ThinkSecret. Oh, I can understand why Apple may not want them to do what they do, that's a given. I can even understand how it can harm them, but that doesn't mean it's not OK. Some would say it doesn't really matter if it's OK, because ThinkSecret will have their day in court, like the defendants in the Tiger lawsuits, and it'll be decided there.

The problem here is that these are civil cases, and not criminal. Most of our experiences with criminal cases come from TV, and we see those types of things all the time on CSI or Law & Order. I.E., in a criminal case, if you can't afford a lawyer, one is provided to you to act in your defense. Not so in a civil case where, if you're a normal human, most of your experience with those comes from TV shows which are the equivalent of Small Claims Court.

There is also the idea in a criminal suit that involves the burden of proof, where the court has to prove beyond a reasonable doubt that you are indeed guilty. In a civil lawsuit, the plaintiff just has to show by a 'preponderance of evidence' that you are probably guilty. This is why O.J. Simpson was acquitted of murder in his criminal trial, yet found guilty of it in the civil lawsuit. Basically it's much, much easier to get convicted via a civil suit.

Let's pretend for a moment that you've been served papers, letting you know that you're being sued for X in the state of California for, say, something intellectual property laws. A civil case in a Federal court, with a jury who will hear from both sides, decide on the merits, and then damages. Let's also pretend you live several thousand miles away from that state. There are deadlines in the documents for doing things, like responses, and initial hearings, that sort of thing.

You call the corporation to try to figure out if there has been a misunderstanding, or something you can do, but they really aren't interested in speaking to you. Luckily, your family has a friend who is a lawyer, because they're always good to have around, so you call him up.

The bad news is that the suit is in California, which means your lawyer tells you he has to be licensed to practice law in California, so he can't really help you. The other bad news is that it involves intellectual property law, and law at this point is like medicine: there are specialized fields for a reason. There's just too much to know and take into consideration between states, let alone actual specialized fields.

You, of course, don't have the resources to go to a large law firm in your area that might have chapters and contacts in California. So what you're really looking for is:

  • A lawyer in, or licensed to practice law in the state of California
  • Conversant with computers, and the issues surrounding them, like P2P, which is rarer than you might think
  • Is an expert in intellectual property matters, which is a very specialized field, which doesn't automatically make them conversant with issues like P2P
  • Willing to work for nothing as well, you have next to nothing.

One of the first things you find out is that most of the people in this field are spoken for by the corporations -- there's a lot of money here, and it's generally a high-level game. The second thing you find out is that those who aren't specifically on a corporate retainer are still spoken for, simply because of how specialized and in the demand the field is. Their billable rates are astronomical, and it's not the kind of thing you can get a line of credit on. No, they want a retainer up front.

You can start selling all your possessions, including your computer and furniture, and still not have enough for them to be willing to consider taking you on, let alone look at your case. This option, for the most part, is pretty much blocked to you. Of course you're enterprising desperate, so you try anyways, or at least to get some advice on how to proceed, and are pretty much told the above. Their general advice is to throw yourself at the corporation's mercy.

Part of you starts thinking, maybe a lawyer will be willing to take it on for the media attention alone, to make a name for themselves. It doesn't really work out that way, as we saw with the RIAA blanket lawsuits and other such things. This is primarily a corporate arena, not a personal one, and directly going against the corporations isn't really in their best interests. Alternately, you're already in such high demand, and raking in so much cash, that it's not as though you really need any more work. There's always some patent lawsuit somewhere.

In fact, those blanket RIAA lawsuits pretty much stopped being lawsuits at all -- it was much easier to just send them a letter asking for $5,000. If they said they didn't have it, they'd ask for $3,000. They knew that 99% of those individuals being sued couldn't come close to affording any sort of trial, and while they may have to borrow from their family and friends to pay the lawsuit, it was much preferable... whether they were guilty or not.

After what you're hearing, throwing yourself at the corporation's mercy is sounding pretty good, so you go back to the company, basically to be told they have no interest in any sort of settlement whatsoever. This is the real deal, and they're planning to nail you to the wall. You still have little idea of the ramifications of all of this.

You're googling, but finding contradictory information... Some say it'll end up on your permanent record because it's federal, which means the end of advanced schooling. Others say it probably won't. Some say if they get a huge judgment, it'll follow you forever... others say you can declare bankruptcy and basically just have your credit ruined. Do you have to go to California? What happens if you don't do anything?

Of course this still isn't helping, as those papers have to be answered, and things have to be done. Someone gives you the idea of going to your college's small law department, and asking for help. After all, there might be grad students, or others, that a professor thinks could use the experience. Some Bar associations and law schools even have clinics to help people with things like this, like say, eviction notices and other such things.

You're politely informed that they empathize with your situation, but unfortunately all the things you need in a lawyer for your case, which we went into above, basically tie their hands. But again, you're enterprising, so why not try the same things, but in California? Surely there are law schools in the area of California that do the same thing. All you'll be out is some googling and long distance charges. You make some calls, get some contacts, and then make more calls.

Unfortunately, the same problems start to rear their heads, but this time in reverse. Those things do sort of exist if you're willing to track them down, but they're generally there to take care of residents of California, not someone thousands of miles away. And even if you were local, they only have so many resources and so much time, so much funding, and this is way over the heads of what they'd ever normally deal with.

What do you do?

yummy alcohol posted button Posted by drunkenbatman
    January 16, 2005, at 01:22 AM


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