It Was the Mother of All Dark and Stormy Nights

For the last month or so, it's seemed that every publication is producing a summer reading list or recommendations for your beach reading enjoyment; never one to avoid the bandwagon, I prepared to do the same. Sadly, it appears that Infamy or Praise's inaugural summer reading recommendation will not be available after all, at least for my extensive Jordanian audience. Saddam Hussein's forthcoming novel, Get Out of Here, Curse You!, has been gloriously martyred in the name of Iraqi-Jordanian international relations.

Jordan has banned Saddam Hussein's new novel on the grounds the tale of an Arab tribesman who defeats a foreign intruder could hurt relations between the two countries, censors and the publisher said Sunday.

"Get out of here, curse you!," believed to have been penned by the ousted Iraqi leader before the U.S.-led war, was set to be released in Jordan and other Arab countries Thursday by a Jordanian company with the permission of Saddam's family.

. . . .

The publisher said he had printed 10,000 copies for distribution in Jordan and other Arab countries, including Iraq, after winning initial permission. He said censors changed their mind after a local newspaper reported the upcoming launch.

"They gave us the okay from day one, but with all this publicity the censors called and told us to stop everything," the publisher told Reuters, asking his name and his company not be printed for fear of government reprisals.

"I will change the cover and publish it abroad. This book is going to be published in the Arab world, I tell you that."

. . . .

A publisher for a London-based publishing house who was offered the rights to print an English translation by the Jordanian publisher said they turned it down.

"We read it but thought it had very little literary value," Hesperus Press publisher Alessandro Gallenzi told Reuters from London.

"We publish classics. I'm afraid this one does not make it."

In lieu of Saddam's magnum opus, perhaps On the Art of Cinema by North Korean murderous dictator dear leader Kim Jong-Il would make a suitable alternate selection. That or Harry Potter.

Cheaper by the Dozen

The twelfth issue of Blawg Review is now available, courtesy of the Tech Law Advisor blog. Disproving the old saying that "one rotten apple can spoil the barrel", the "Legal Lines in the Sand" post from Infamy or Praise is included, with no discernible ill effects on the overall quality of the edition.

Check the submission guidelines and recommend a worthy post you've seen in the past week or, if so inclined, a recent post of your own; the deadlines for submissions are each Saturday evening for the following Monday's issue.

TGIS: Thank God It's Schadenfreude! (19)

This week's joy in the misfortune of others comes courtesy of the Associated Press (from Wednesday, June 22; link good at time of posting):

A man accused of holding up a pizza parlor left behind a job application with his real name and address, authorities said.

"I would chalk it up to either inexperience or plain stupidity," Clark County prosecutor Frank Coumou told the Las Vegas Review-Journal for a Wednesday report.

Alejandro Martinez, 23, of Las Vegas, was being held Wednesday at the Clark County jail pending a Monday appearance in Clark County District Court. He faces felony burglary and robbery with a weapon charges in the May 25 heist.

Authorities said Martinez ordered a pizza and started filling out the application before displaying a gun and demanding money. The clerk handed over $200.

Outside, a witness wrote down the license plate number of a getaway car, leading police to Martinez' home.

[Previous TGIS]

Legal Lines in the Sand (in Perspective)

Last night, after writing yesterday's post about working as an in-house attorney, I chanced to read the following passage in Robert K. Massie's excellent history of the British and German navies during World War I, Castles of Steel (emphasis added):

[O]nly twelve new destroyers and twelve new submarines had been ordered. [First Sea Lord John "Jacky"] Fisher considered this grossly inadequate and convened the November 3 meeting to change course. His most urgent concern was the construction of submarines; that same day he placed orders with British shipbuilders for an additional twenty. Then, staring at the Admiralty Director of Contracts, he threatened to "make his wife a widow and his house a dunghill if he brought paper work or red tape into the picture; he wanted submarines, not contracts . . . . If he did not get them within eight months, he would commit hara-kiri." At this [Commodore Roger] Keyes, who was present, made the mistake of laughing. Fisher turned on Keyes "with a ferocious glare, and said, 'If anyone thwarts me he had better commit hara-kiri too.'"

For those in-house counsel who feel pressured to entirely sacrifice their legal judgements to the business demands of their non-lawyer managers, this should help to put things into perspective. Yes, the business and legal objectives we seek to accommodate can be difficult at times to balance appropriately, but:

1. Your company is not a sovereign nation -- it's just a gathering of people with a common business purpose;
2. Despite what your head of sales told you at your last management retreat or company meeting, you are not really at war for your very survival; and
3. He may be scary, but your CEO is not as scary as Jacky Fisher.
   

Legal Lines in the Sand

The Wired GC posted late last week concerning the crumbling patent infringement settlement between Research in Motion (RIM), maker of the BlackBerry messaging devices, and NTP. For those not actively following this case, the dispute concerns several patents assigned to NTP, which RIM may have infringed with various models of its BlackBerry devices. Faced with the possibility that all its BlackBerry sales in the United States could be brought to a halt by an injunction in the case, RIM settled with NTP in mid-March. That settlement was memorialized in a half-page term sheet thrown together and signed by the parties, a document which NTP now argues is "vague" and "ambiguously worded". RIM, it seems, may be back in jeopardy.

As The Wired GC pointed out:

Corporate counsel get criticized for over-lawyering and endlessly documenting. But sometimes it’s because issues are complicated and the general intent–to pay money to settle claims–has to cover all contingencies. That’s precisely when a highly competent and creative lawyer is worth every penny–maybe even worth a percentage.

Speaking generally now, it can be tempting to take the quick-and-dirty approach to documentation after protracted settlement discussions or contract negotiations. There are flights to catch and a backlog of other pressing business to attend to. Any “term sheet” or the eerily-titled “letter of intent” relies on one thing: the mutual trust of the parties. There are cases where they are enforced (like the Texaco v. Pennzoil case), and others (maybe this one) where they aren’t.

One of more difficult adjustments lawyers must make when they move to an in-house position is to internalize the fact that their legal work is no longer the primary product of their employer. Meticulously-researched, expertly-drafted legal documents are no longer the objective of your organization -- indeed, such documents may be an unnecessary impediment to your company's business objectives. As I was told once at the first company where I worked in-house, "This is great, but we're not selling your contracts."

More so than outside counsel, in-house attorneys must learn to strike appropriate balances between a company's business objectives and its legal interests. The corporate counsel's rule of thumb is to do just enough legal work to protect your employer. An airtight contract which absolves your company from every liability will never be signed by the other party and your company will, as a result, realize nothing of value from the transaction.

Notwithstanding, there are some situations where the company's legal interests are of paramount importance -- as, for instance, in the settlement of multimillion dollar could-break-the-company patent litigation -- where an in-house attorney must draw the proverbial line in the sand and take the time to draft (or overdraft, as the case may be) despite the protests of the non-lawyers around him. An attorney who lacks the professional courage to draw that line when necessary, or who has lost his credibility for drawing lines without good cause in the past, has become a liability to his company who should be removed, gracefully or otherwise, without delay.

Keystone Kop-Out

Perhaps it's as Abraham Maslow opined -- "If you only have a hammer, you tend to see every problem as a nail." As someone who deals with contracts every day, I tend to see contracts law in every topic. Yesterday, both Ars Technica and The New York Times covered the massive CardSystems Solutions data theft, which was finally revealed last week. I of course was drawn to a contracts angle in the controversy which was mentioned only in passing.

Contractual arrangements between the card issuers, including MasterCard and Visa, and transaction processors, such as CardSystems, prohibit the processors from retaining cardholder names, account numbers, expiration dates, security codes, and other information after completion of a transaction. A significant portion of the data lost by CardSystems comprises information improperly maintained by the company despite those contract prohibitions. According to The New York Times account:

[John M. Perry, CardSystems' CEO] said the data was in a file being stored for "research purposes" to determine why certain transactions had registered as unauthorized or uncompleted.

"We should not have been doing that," Mr. Perry said. "That, however, has been remediated." As for the sensitive data, he added, "We no longer store it on files."

. . . .

"CardSystems provides services and is supposed to pass that information on to the banks and not keep it," said Joshua Peirez, a MasterCard senior vice president who has been involved with the investigation. "They were keeping it."

So CardSystems improperly retained consumer data despite specific contract prohibitions . . . at least they'd take some care to protect that information, right? Not according to Ars Technica: "[T]he data was stored in an unencrypted file accessible from outside the company's network. As a result, an intruder was able to access CardSystems' network via a known and unpatched security vulnerability and make off with the data." Quoted by The New York Times, industry insiders pointed out the particular value of the lost information:

Mr. Peirez of MasterCard said that the data inappropriately retained by CardSystems was particularly sensitive because it included cardholders' three- and four-digit security codes, making it more attractive to potential thieves because it can double or triple the black-market value of a cardholder's account. Ms. [Avivah] Litan of Gartner said there was no reason for a processor to store security codes. "It's probably just laziness or they don't know the rules," she added.

Ultimately, if there's any consolation in all of this, it's that dumb luck sometimes protects us -- the personal data displayed by CardSystems like could have been much more personal than it was, according to Ars Technica:

The good news (if there is any) is that no identifying data such as addresses and Social Security numbers was stolen?just names, account numbers, and card security codes. So victims should only have to worry about credit card fraud (for which they will have no liability) rather than wholesale identity theft. Praise be!

As cardholders, we (implicitly) place our faith in the card issuers to establish and enforce appropriate guidelines for data protection. When issuers point to the strength of their contractual terms to excuse their lack of enforcement of those very terms, however, we can safely conclude that our faith is misplaced.

To protect cardholders, Visa and MasterCard have long-established policies for the merchants and processors that handle transactions on their payment network. They require their processors, for example, to hire a certified outside assessor to do an annual security assessment. Processors must also conduct a quarterly self-evaluation and scans for network vulnerabilities.

The card associations have also spent millions of dollars to upgrade their own computer systems with sophisticated fraud-detection software. Over the last two years, they have sent out teams to processor and merchant sites to review compliance.

. . . .

"The standards themselves are very effectively written," said Tom Arnold, a partner at Payment Software Company, a consulting firm in San Francisco that advises and provides security assessments for merchants and processors. "The challenge in the industry can be when people don't fully comply or try to cut corners."

Avivah Litan, an industry analyst at Gartner Inc., agreed. "If they are really serious about these programs, they should pay attention to how the processors are guarding the data, and they are not," she said. After the disclosure of the security breach at CardSystems, varying accounts were offered about the company's compliance with card association standards.

. . . .

Yet, there may be little incentive for processors to change. Visa and MasterCard have said that payment processors that violate their rules must pay a penalty, but they do not disclose the amounts of those fines. And it is typically the merchant that bears the cost of data fraud.

Zero liability for customers means that fraudulent charges come out of a bank or store's coffers in the form of higher merchant transaction fees. "The retailers will pay for it and the issuing banks will get rich off it," Ms. Litan said. "It's just another revenue stream."

It's long been my opinion that unenforced contract terms are generally worse than absent ones, just as a threat that is never carried-out is usually of less deterrent value than an implicit threat never explicitly made. Leave it to someone's imagination what might happen to him, and he'll probably act more appropriately than he will if he knows your dire warnings are nothing but toothless belligerence. It's like Robin Williams' joke about the mostly-unarmed British police yelling after an escaping criminal, "Stop, or I'll say 'stop' again!"

Public reaction to breaches like that committed by CardSystems will likely prompt the drafting of reams of well-meaning policies and legislation. Let's focus instead on enforcing the already adequate terms which exist today.

If changes are deemed necessary, my own proposal is to establish a policy of credit karma -- if you are the manager or director of a company which mishandles sensitive consumer information as CardSystems has, your name, address, social security number, and credit information will be published for us all to use to recoup our own losses. Adjust your data retention and security practices accordingly.

[Update]

Blawg's Eleven

The eleventh issue of Blawg Review is now available, courtesy of Al Nye the Lawyer Guy. I have not yet had an opportunity to read this edition in its entirety, but off the top of my head, I'd say you're looking at a Boeski, a Jim Brown, a Miss Daisy, two Jethroes, and a Leon Spinks -- not to mention the biggest Ella Fitzgerald ever! Check the submission guidelines and recommend a recent post of your own or steal someone else's for the next release; the deadlines for submissions are each Saturday evening for the following Monday's issue.

TGIS: Thank God It's Schadenfreude! (18)

This week's joy in the misfortune of others comes courtesy of the Associated Press (from Monday, June 13; link good at time of posting):

About a dozen young hawthorn trees recently blossomed outside the entrance to the new federal complex in Erie, giving visitors and workers an eyeful of delicate, small, white flowers but also a noseful of what smells like something dead or rotting.

"They say, 'Oh my God, what is that smell out there?' We say, 'Oh, it's just our wonderful trees,"' said Frank Gressley, a U.S. Marshals Service court security officer.

It took awhile for people to figure out the blossoms were to blame for the nose-wrinkling smell.

The trees were planted as part of a $36 million renovation of the federal courthouse. Other plantings around the courthouse include white-flowered rhododendrons, honey locusts with comb-like leaves and creeping myrtle vines.

It's unclear why officials picked the hawthorn trees or placed them next to the front door.

The trees may have been selected more for their aesthetics than olfactory impact, said Jim Sellmer, an associate professor of ornamental horticulture at Pennsylvania State University.

"You have to ask, 'Do you not want your people to go to work?' It is a pretty flower, but the stench is enough to drive people away," Sellmer said.

[Previous TGIS]

I'll Take "Bad Ways to Die" for 20,465 Baht, Alex

Hard on the heels of South Korea's recent stem cell research break-through comes this medical news from Thailand -- super glue is a cure for moodiness:

A young Thai man with a history of moodiness has killed himself by gluing his mouth and nose shut with super glue.

Bangkok police say the young man’s body was found this morning in his bedroom, apparently after suffocating overnight. They say a small amount of cash and a note saying “Here is all that I have, take what you please” were also found on the bed.

The man’s family told police he had argued with his sister yesterday over some money she’d borrowed and not repaid.

Skynet Awakes

The San Francisco Chronicle reports:

Waldo the pill-dispensing robot apparently went berserk this past week at UCSF Medical Center, sending a doctor and patient running for cover.

Whacked-out Waldo is one of three battery-operated, rolling robots that dispense pills at the hospital.

. . . .

[]Tuesday, Waldo shot past the pharmacy and barged uninvited into the examination room in the radiation oncology department, where -- according to an anonymous caller -- a doctor was examining a cancer patient.

According to the caller, Waldo wouldn't leave, and the startled doctor and patient felt obliged to flee the room.

I for one welcome our new robot overlords.

Super Kofi Brothers

Via the UN Dispatch, Toronto's Globe and Mail reports:

A new on-line video game that shows players how helping starving people can be exciting has attracted more than one million downloads from China to Canada.

The free game, Food Force, puts players behind the wheel of a United Nations food truck navigating its way through minefields or at the back of an airplane unloading food sacks in gusty conditions. The stakes are high -- if you make mistakes, starving people will die.

Set to a techno beat that lends a sense of urgency to the logistical quandaries of helping a fictional drought-stricken island, Food Force stands out in the world of video gaming, where players are more usually tutored in such things as exploding their enemies or dominating the world.

The game is a production of the UN's World Food Program and features six "mission" games. The seventh food mission, trading food for sex with impoverished and desperate indigenous persons was apparently scrapped. Perhaps the UN's next computer-based education project will be a Darfur-themed screen saver which will, like the UN, do nothing useful to stop the genocide.

BR X: Tiger

The tenth issue of Blawg Review is now available, courtesy of the InternetCases.com blog. If it prompts you to think different, check the submission guidelines and recommend an outstanding post you've read in the past week or one of your own recent posts for the next release. The deadlines for submissions are each Saturday evening for the following Monday's issue.

Whither Arafat?

I was so glad when Yasser Arafat finally died that I haven't given much thought to what's become of him since; fortunately, I can rely on others in the blogosphere to do my thinking for me. Back in November, it seemed James Lileks might be on the right track -- "I am content to know he is not in Hell. Nope. Arafat did not go to Hell. He boards the ferry, yes; he makes it halfway across the River Styx, yes. Then the ferry blows up. Ten times a day for eternity. For a start." Then, on June 7, he had another lead -- "If there is a hell, Arafat is being blown up and disassembled – with hot staples – every 27 seconds."

Now the speculation can end. Laurence Simon, of This Blog Is Full Of Crap and 100 Words or Les Nessman fame, has located the erstwhile terrorist. He's been reincarnated as a squirrel and yes, he's still nuts:

He was gone.

And then he was back.

Yasser looked around.

No Paradise. No seventy-two virgins. No throne of Allah.

"What is this madness?" he wanted to say.

It came out as: "Chitter!"

TGIS: Thank God It's Schadenfreude! (17)

This week's joy in the misfortune of others comes courtesy of the Associated Press (from Wednesday, June 8; link good at time of posting):

A guest went on a ride-along with a sheriff's deputy, then stole the deputy's patrol car early Wednesday and led police on a chase through three cities, authorities said.

Steven Funderburk, 20, was riding with Los Angeles County Deputy Alexander Miller under a program that allows anyone to accompany an officer if they have no felony convictions and fill out an application, authorities said.

When Miller's shift ended after 1 a.m., Funderburk asked to retrieve his bag from the car in the parking lot. When Miller returned to check on Funderburk, the car was gone, sheriff's Sgt. Don Manumaleuna said.

Miller was able to talk to Funderburk on the patrol car's radio and persuaded him to surrender without incident after a chase through Compton, Long Beach and Westminster, Manumaleuna said.

. . . .

Manumaleuna said Funderburk developed a good rapport with Miller during the ride-along and did nothing to arouse suspicion.

"It's very bizarre," he said. "We're still trying to figure this one out."

[Previous TGIS]

Life in the Real World

With the Senate's confirmation yesterday of California Supreme Court Justice Janice Rogers Brown, there has been increased speculation in our local press concerning Governor Schwarzenegger's (I know, it still sounds strange) forthcoming selection to replace her on the court. This morning on KQED, the local NPR affiliate in the Bay Area, an emeritus professor at UC Berkeley's Boalt Hall law school offered some advice; he recommended that the governator make a bold choice and select someone "with real world experience, like a politician or a law professor."

While many, if not most, politicians and legal academics have substantial work experience beyond the walls of their marble halls and ivory towers, I doubt that "politician" and "law professor" are the archetypes of "real world experience". Worthy professions, yes; real world, no. Nice try, professor, but it's clear that the "real world" candidate the public demands for the highest court in the state would be an in-house counsel at a Northern California software company, ideally with "real world" experience in home repair and interests in baseball and military history. If such a renaissance man exists, where, oh where could that remarkable person be found?

If I can locate an audio stream of the segment online, I'll append it to this message later today.

Queen for a Day

In yesterday's Wall Street Journal, an article detailed the decline in "Pork Queen" pageants throughout the Midwest. The article attributed the decline to a number of factors, including a steep drop in the number of family farms and a lack of corporate sponsorship, and made passing reference to "waning interest among young women". Talk about missing the forest for the trees (or the pig for the slop, or whatever Pork Queen pageant afficianadoes would say); read the article and this mysterious "waning interest" becomes less of a mystery:

The Pork Queen's wake-up call came at 3:30 a.m. An hour and a half later, wearing a rhinestone tiara, white sash and blue denim jacket, Cassidy Greiman headed to the Blank Park Zoo, where her public was supposed to be awaiting.

After four hours, the 19-year-old college sophomore had greeted fewer than a dozen children at the opening of a pig-birthing unit. A local radio host at the event last month interviewed two zoo interns but didn't find time to talk to the Pork Queen. The chilly sow barn was mostly empty when she launched into a speech on the importance of pig byproducts.

In a sausage casing, there you have it -- being the Pork Queen sucks. Let's treat our Pork Queens more like royalty. At least let the poor girl sleep in once in a while.

Blawg Potion Number Nine

The ninth issue of Blawg Review is now available, courtesy of the JurisPundit blog. Stop Searching, review the submission guidelines and recommend an outstanding post you've read in the past week or one of your own recent posts. The deadlines for submissions are each Saturday evening for the following Monday's issue.

TGIS: Thank God It's Schadenfreude! (16)

This week's joy in the misfortune of others comes courtesy of the Associated Press (from Thursday, June 2; link good at time of posting):

Authorities have a tip for would-be gasoline thieves: when stealing gas in the dark, do not use a lighter to check on your progress.

Authorities say one man did just that when he was siphoning gas from a dump truck at a business in the Adirondacks.

The sheriff's department says he was transferring the fuel from the truck to a gas can when he used a lighter to see how full the container had become.

That sparked a fire that caused minor burns to his face and hands.

The fire spread to a nearby forklift, which was destroyed in the blaze.

The man has been charged with petit larceny and criminal mischief.

It was his second arrest in a month for stealing gasoline from businesses in the town of Thurman, about 65 miles north of Albany.

[Previous TGIS]

Foreign Influences Redux

In the forthcoming issue of Policy Review, Professor Kenneth Anderson of the Law of War and Just War Theory Blog has published an excellent analysis of the Supreme Court's Roper v. Simmons decision (which I criticized shortly after its publication) and, more generally, the use of foreign legal precedent in interpreting our Constitution.

I'm OK, You're a Jackass

Another episode of Celebrity Smackdown is getting underway. In the blue corner, Brooke Shields has a young child and is depressed; her opponent Tom Cruise is dating a young child and is happy:

Brooke Shields is sending a cruise missile Tom Cruise's way: The actress, who explores her postpartum depression in a new memoir, says Cruise has no right to dis her for using antidepressants.

Last week the "War of the Worlds" star expressed his Scientology-based condemnation of psychiatry to "Access Hollywood" by saying it was "irresponsible" of Brooke to say her meds helped cure her.

In a tangy and twisted bit of false praise, T.C. added: "I care about Brooke Shields ... (but) you look at where has her career gone?"

Speaking to People mag, Brooke was polite: "Tom should stick to saving the world from aliens, and let women who are experiencing postpartum depression decide what treatment options are best for them."

When Tom Cruise was a nobody in Hollywood, where did he make his film debut? It was as a bit player in "Endless Love", which starred Brooke Shields, who had been a star for several years at that point.

When Tom eventually becomes a nobody in Hollywood and people ask "where has his career gone", I'm guessing he'll be wanting Brooke's meds a bit more than she's wanting his copy of Scientology right now.

Ugly is not Unique, but it is Distinctive

The Trademark Blog explains how close knock-off handbag designers can get to the original without running afoul of trademark and trade dress rights. Nevertheless, while the post is an outstanding review of the relevant laws and trends in legal protections, it fails to note the most salient fact about these bags -- they're ugly. As the "ugly ass" Bruno Magli shoes made famous during the O.J. Simpson trial demonstrate, ugliness is by no means limited just to handbags, although those overpaid folks at Dooney & Bourke have certainly mastered the art of the ugly.

It's a common instinct to try to bring order and beauty to our surroundings: Given the opportunity to do so, we usually select color combinations that are complementary and visually-pleasing; we tend to choose ornamentation which enhances, rather than distracts from, an ornamented object. In the counter-intuitive world of high fashion, however, it's distinction which is sought by designers, fashionistas, and intellectual property attorneys. Only something that is different than the rest can be protected; thus, when the natural trend is toward the beautiful, it's the ugly which has value.