A Round Tuit (44)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

I've never served as a juror in a criminal trial and as a lawyer I'm an unlikely candidate ever to be impaneled; it's possible, but highly unlikely. I've never prosecuted or defended a criminal case before a jury; I'm a lawyer, but I'm not that kind of lawyer and never will be. No, more likely than not, if I ever find myself interested in the deliberations of a criminal jury as something other than a casual spectator, it will be because my fate is in their hands.

I'd not willingly trust my fate to the proverbial "twelve angry men" (or, if you'd prefer, "twelve good men and true"), knowing how fallible and prone to manipulation even the most intelligent and conscientious of us are. I am certain, however, that I'd sooner trust my fate to twelve people who couldn't escape jury service than to ten or eleven of that group when their fellows remain in doubt. Sure, as a (thankfully) prospective defendant, I'd rather have a unanimous jury of twelve hundred impartial peers or, better still, twelve highly-partial family members or people who owe me favors, but I accept that an impartial, unanimous jury of twelve is what our system of justice offers and with few exceptions has always offered us. Smaller juries? Prejudiced juries? Divided juries? No, thanks.

The State of Oregon, where I went to law school and was admitted to the bar, is one of only two states (the other being Louisiana) where jury verdicts in criminal trials need not be unanimous. That's appalling, frankly, but under Apodaca v. Oregon it's Constitutional — for now and, hopefully, not for much longer. I'd prefer that Oregonians themselves would correct the situation, but I'd be nearly as happy if the Supreme Court would step in and do it for them.

The first step has been taken. Eugene Volokh reported that he and colleagues at Mayer Brown LLP have filed a petition for certiorari asking the Court to reconsider Apodaca in light of more recent jurisprudence:

Here’s the basic issue: In Apodaca v. Oregon (1972), the Supreme Court held that the Sixth Amendment requires unanimity for a verdict — but that the Fourteenth Amendment does not carry this rule over to the states, and that even 9–3 verdicts are constitutionally permissible. The Jury Trial Clause is thus the one Bill of Rights clause that is neither completely incorporated against the states via the Fourteenth Amendment, nor completely not incorporated. (Recall that the Bill of Rights originally applied only to the federal government, and has been applied to the states only through the Fourteenth Amendment.)

This partial incorporation is inconsistent both with prior Supreme Court practice and with this year’s McDonald v. City of Chicago decision. (McDonald calls such an approach “watered-down” incorporation.)

In a follow-on post, Volokh discussed the history of the unanimity requirement:

The right to a unanimous jury verdict was firmly established when the Bill of Rights was framed. Sir William Blackstone noted it as an essential feature of the right to trial by jury[.]

....

Unanimity was also part of James Madison’s understanding of the right to trial by jury. Madison’s original draft of what would become the Sixth Amendment provided for trial “by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites,” 1 Annals of Cong. 452 (1789).

The proposal was ultimately revised, with the “unanimity” language omitted, and there can be two alternative inferences from this change. One is “that Congress eliminated references to unanimity and to the other ‘accustomed requisites’ of the jury because those requisites were thought already to be implicit in the very concept of jury.” Apodaca, 406 U.S. at 409–10 (plurality opinion). The other, which the Apodaca plurality endorsed, “is that the deletion was intended to have some substantive effect.” Id. at 410.

But the plurality was mistaken; the historical evidence cited above shows that the unanimity requirement was indeed seen as “implicit in the very concept” of the Anglo-American criminal jury. Protecting the “trial by jury” safeguarded the essential incidents of the trial, such as the unanimity requirement, with no need for a detailed enumeration.

I'm hopeful, perhaps naively so, that the Supreme Court will accept this opportunity to correct their misstep in Apodaca. Scott Greenfield tends to agree that correcting Apodaca is necessary, but he's also unwilling to let Oregon off the hook so easily:

Eugene's argument is that the holding in McDonald, rejecting what it called the "watered down" incorporation of rights via the 14th Amendment to the states is unacceptable, should serve to straighten out the mess made by Apodaca's sloppy plurality, creating this anomalous rule to which only one justice subscribed.

Still, the question remains why the State of Oregon finds a non-unanimous jury verdict acceptable to convict. Putting aside its rejection of the historical common law understanding that a jury verdict be unanimous for conviction, it seems incomprehensible that a state would believe the rejection of a quarter of a jury that the evidence proved guilt beyond a reasonable doubt to be an acceptable, no less good, idea. It may be my bias, but it strikes me as barbaric.

Gideon wrote that considering a non-unanimous criminal verdict "close enough for government work" is an affront to justice:

[H]ow convinced are we that those who are arraigned, indicted and tried are guilty – that we are willing to forgo the simple notion that if society is going to convict, condemn and incarcerate on of its own, then it must be done only after a small representative sample of its members agree?

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The underlying theme in this non-unanimity movement seems to be that mistrials are an inconvenience. An inconvenience to the court, to the prosecutors, to the staff and to everyone but the one person to whom a trial matters most: the defendant.

How are we to have faith in a system where you are tried by a large governmental entity, your guilt or innocence to be decided by a not-really representative portion of “your” community and then that very government tells the representative portion: it doesn’t matter if you all agree or not, as long as a majority does.

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A conviction and subsequent incarceration is one of the harshest actions taken by the abstract Government against its citizens. If we can’t get a miniscule portion of the citizens that it purports to represent to agree on the guilt of a man, then the government has failed.

It may be close enough for government work, but when it comes to justice, there should be no such thing.

It's undeniably true that our system of justice, however imperfect, relies heavily upon jurors' intelligence, comprehension, and judgement. Considerable effort goes into understanding and predicting juror behavior and attempting to apply whatever knowledge is gained through those efforts to voir dire and trial presentations. It remains, however, that trying a case to a jury is much more art than science and skilled and experienced attorneys struggle to strike the correct balance in their communications to jurors. Building on their discussion of jury unanimity this week, Gideon and Greenfield considered the challenges of communication and the (hypothetical) utility of questioning by the jury during trials. Gideon wrote:

We like to say that people are tried by a jury of their peers. Yet we lawyers treat these peers as if they were our own, not that of the defendant. The language we use is archaic, complicated and downright stupid and confusing. The format of the jury trial is usually a patchwork of testimony that may or may not be tied up in the end by lawyers depending on their level of competence. Sometimes, I watch trials with which I have no connection and marvel at the fact that jurors are able to reach verdicts of any sort at all. A juror must feel like he’s getting a quick glimpse into an intensely technical and complicated and petty world and the first instinct must be to run in the opposite direction as soon as possible.

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I’m against permitting jurors to ask questions of witnesses during the pendency of the trial, because in my view it interferes with the State’s burden of proof – at least in criminal trials.

But the idea of permitting jurors to ask questions of the lawyers during closing argument – a la oral argument before an appellate bench – is an intriguing one.

It is often said that you can make or break a case in closing argument: the key piece of evidence left unexplained, the big problem with the defense untouched, leaving jurors no choice but to convict or acquit, simply because you didn’t address it. So why not take the one hour of closing arguments that most courts permit and turn 15 or 20 minutes of that into a free-flowing back and forth between the jurors and the lawyers? Let jurors ask questions about the application of the law to the evidence, explore their doubts about the meaning of evidence presented, clarify their understanding of the import of a particular piece of evidence.

After all, if we want the jurors to decide the case based on the evidence presented to them, then at least let us help them understand the evidence presented.

Greenfield replied:

One problem that presents itself in Gid's Q&A scenario is the asking of irrelevant, immaterial or "curiosity" type questions that call for background information which would otherwise be inadmissible. For example, what if a juror asks whether the defendant, who did not testify, was ever convicted of a crime before? Sure, the judge could "admonish" the juror that it's an improper question, but once the notion is put out there, leaving it unanswered has a huge potential to taint the jurors imagination.

Still, summations present an inherent challenge in our ability to effectively communicate our message to a diverse group. As communication is both sending and receiving, it's often impossible to know whether the message sent was adequately received. We don't know, despite all the voir dire gurus, whether a juror is capable of understanding. Talk too simply and we risk insulting jurors who get it, who feel as if the lawyers are treating them like morons. Make complex arguments and risk jurors having no idea what you're talking about. Do both and bore the crap out of the jury until they stop listening altogether. It's a problem.

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Like most, I want to hear from the jurors after a verdict to better understand what happened. My experience is that juries rarely decide a case for the reasons anticipated by either side, almost invariably going down a different path than the one urged by prosecution or defense. Sometimes, their reasoning is so bizarrely irrational as to make a lawyer wonder why we bother with the exercise of a trial at all.

"Bizarrely irrational" doesn't fill me with the confidence that "good and true" or even "angry" would. Still, so long as there are twelve of them and their unanimity on the matter before them is required, even twelve bizarrely irrational men can prevent an injustice.

Initial a document, open a shrink-wrapped package, click the "Accept" button; how many software licenses have you agreed-to recently? Probably more than you think. It's become second nature to accept terms with so many of the things we buy these days that we often don't realize when we don't really own anything.

Buy a book, read it, lend it to a friend, and finally sell it to a secondhand bookstore or donate it to a library; that copy's yours to do with as you will. Download an eBook to your reader and you can use it only as much and for so long as the vendor allows.

Buy a CD, listen to it on your home stereo, listen to it in your car, rip it to iTunes and listen on your iPod, lend it to a friend, sell it to a used CD store or donate it to a library; that CD's yours to do with as you will. Download the same album, however, and you can enjoy it only as the vendor allows.

Once we bought books and music, with broad rights to use and resell them. Now that we're downloading eBooks and .mp3s, we've only limited rights to use them, subject to restrictive conditions and DRM controls. There's a tension between, on the one side, our experience with physical goods and our innate sense of what should be ours when we've bought something, and on the other, the pages of legal terms which accompany the electronic versions of the items we purchase online.

If a vendor attaches terms to a copyrighted work which designate that work as licensed rather than sold, or imposes very restrictive terms to segment the market and increase its revenues, must the law honor that? Are purchasers' use rights subject to the whims of vendors' licensing terms, however restrictive?

The highly-anticipated Ninth Circuit case Vernor v. Autodesk answered those questions this past week and, if you're a consumer, the answers weren't good ones. Though the case concerned software rather than eBooks or digital music, the implications for all copyrighted works in digital form are clear — you don't own anything, no matter what you've paid for it. The facts are these: Vernor's business involved buying-up used property and reselling it on eBay; amongst the items he purchased were a number of copies of Autodesk's software applications. Those applications were subject to restrictive licenses which prohibited, amongst other things, unauthorized resales. When Vernor sought to resell the disks and serial numbers he'd purchased on eBay, Autodesk prevented him from doing so. Vernor sued, asking the District Court to find that his resales of the disks were permitted by "first-sale doctrine", whereby particular copies of copyrighted works can be sold or disposed of by owners without leave from copyright holders. The District Court so found, Autodesk appealed, and the Ninth Circuit reversed, ruling that because Autodesk had designated that software as licensed rather than sold, its purchasers were not owners and therefore not covered by first-sale doctrine.

Nate Anderson summed-up the problem:

[I]f a company says you don't have the right to resell a program, you don't have that right. Could this mean the end of the resale market for all digital content? Yup. But the court says it had no choice.

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So how does one know when it's a "license" or a "sale"? (In other cases, courts have ruled that simply calling something a "license" doesn't make it so.) In today's ruling, the judges laid out a test:

"We hold today that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions."

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So, to recap: EULAs [End User License Agreements] are binding, they can control just about everything you might dream up, and only Congress can change the situation.

David Kravets put it even more succinctly — "guess what, you don't own that software you bought".

I'll admit that I was surprised that the lower-court ruling in Vernor's favor was reversed, and so thoroughly; the folks at the Groklaw blog were no more enthusiastic, but were somewhat less surprised than I was at the result:

I am sorry that some will feel upset, but I did warn you that the underlying legal tide was flowing this way and that I did expect that the lower court's decision would be reversed. EULAs are generally upheld, from all I know and have seen.
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Ars Technica says only Congress can change this now....

But the truth is, you have a more immediate solution solution. Here it is:

Stay away from software that comes with EULAs that restrict you in ways you don't like.

That's easier said than done, I suspect. Even now, just a few years after Vernor filed suit, the distribution of software on physical media is becoming something of a rarity. Though music on physical media has a longer history, and physical books a much longer one, both are becoming increasingly digital and more and more often exclusively digital. As Evan Brown noted, the impact of the ruling shouldn't be underestimated:

No doubt the distribution of physical copies of software is less important than it was in the past. But the Vernor case is worth looking at inasmuch as the ruling could translate into some potentially wacky arrangements depending on the desires of copyright owners and the accompanying restrictions they may put on the uses of their works. The holding of the case is not limited to software, but to any copyrighted work capable of being distributed in physical form. As Vernor’s attorney Greg Beck has written, “there is no obvious reason why other publishing industries couldn’t begin imposing the same terms. If they do, it may be the end of ownership of books and music.”

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The decision is subject to criticism in a number of ways. First, it might go against the sensibilities of many ordinary folks who think, quite naturally, that when you buy something (like a CD containing software), you own it. This case confirms that that is not always the case.

A second possible criticism is how the case makes possible some strange situations not involving software. What’s to stop hard copy book publishers from entering into shrinkwrap agreements with people who buy the books, purporting to retain ownership and calling the arrangement a license, while placing restrictions on use and transfer? Under the test in this case, it could be an infringement to lend or sell or otherwise distribute that book. Seems like a dangerous way to lock up information. But I guess it’s better than including curses as DRM.

Finally, the case lends itself to criticism in the way it gives great power to the software companies to really tie up tangible media to the detriment of consumers. Once an application has been sold once, where’s the harm to the software company if it’s transferred to someone else? The company has already been paid once, why must it insist on getting paid again? This grabbiness is really no surprise, though, especially when one sees that the likes of the Business Software Alliance joined as amici on the side of Autodesk.

The decision concerned software rather than books or music, but it's all bits now; the software at issue was distributed on disks and we're now into the age of cloud computing. Still, the impact of Vernor will be felt beyond software and for many years to come, absent intervention by Congress. Corynne McSherry of the Electronic Frontier Foundation, which filed an amicus brief supporting Vernor, predicted the fallout from the decision:

In a major blow to user rights, the Ninth Circuit Court of Appeals has issued a decision that will go a long way toward ensuring that software buyers will rarely be software owners.

In a triumph of legal formalism over reality, the Court held that the copyright’s first sale doctrine – the law that allows you to resell books and that protects libraries and archives from claims of copyright infringement – doesn’t apply to software (and possibly DVDs, CDs and other “licensed” content) as long as the vendor saddles the transfer with enough restrictions to transform what the buyer may think is sale into a mere license.

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By undermining the crucial balance between copyright owners and users that supports used bookstores, libraries, and DVD rentals, it hurts both our ability to save a few dollars and our ability to retain, archive and access older, out-of-print materials. Libraries and second-hand sellers are often the only hope for these materials and the “long tail” community of researchers, historians and hobbyists that value them.

But the potential effects of this decision don’t stop there: it risks creating a situation in which violating contracts and end-user license agreements (EULAs) could result in a copyright infringement lawsuit (with the heavy club of statutory damages, attorneys fees and low standards for injunctions) rather than just a simple breach of contract claim.

The real shame of the Vernor decision is that it didn't need to have such far-reaching consequences. As Denise Howell explained, the court could've reached its result in a much less disruptive fashion, finding for Autodesk on more limited grounds and without giving digital property vendors carte blanche to impose whatever licensing terms they wish:

Autodesk gives customers the ability to upgrade at a discount well below the cost of buying new software, but also expects them not to deepen the effective discount by selling their old copies. Autodesk forbids this practice by having its software license agreement (SLA) require customers to destroy old copies after an upgrade. True, Autodesk also purports to require customers to obtain its consent to any sale of any of its software (e.g., if CTA had tried instead to sell v.15), but that provision did not need to be at issue here because CTA didn’t try to sell any of its upgraded copies; it sold the outdated ones.

Given all this, the court seems to have missed a more palatable path to the same outcome. From a legal and policy standpoint, I’d be far more comfortable with a court saying CTA did not “own” its outdated v.14 copies for resale purposes, because it knowingly and reasonably forfeited those sorts of rights when it opted for the discounted upgrade. That’s telling your customer it can’t have its cake and eat it too, and shouldn’t offend anyone’s notions of rationality and fairness. Confoundingly however, that’s not what the 9th Circuit hung its hat on here.

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A better-reasoned outcome would have been that “ownership” of software is possible, even in the face of various transfer and use restrictions, but not when a customer opts for the covert “sell” over the contractually required and financially rewarded “destroy.”

"Why were you in __________?" seems a natural enough question to ask someone recently returned from abroad. As between acquaintances, one might ask from genuine curiosity or just as idle chit-chat. A response might be brief but polite, long and involved, or abrupt and dismissive. There's no obligation to ask or to answer such a question and little at stake regardless. As with many encounters, however, when one of the participants is wearing a badge and acting under color of authority, things take on a different meaning on both sides of the conversation. Questions are rarely asked idly and answers may have consequences.

The most prudent approach to any encounter with law enforcement is to say nothing or as little as is absolutely required; in practice, when dealing with seemingly benign interactions it's often difficult to know where to draw the line. Despite my suspicion of government generally and law enforcement particularly, I often forget myself and fall naturally into polite conversation with them about topics which I have no obligation to discuss. I've not traveled internationally in some time but on returning I probably would've answered the border officer's question "Why were you in __________?" without much thought. I would have, that is, had I not read a post mentioned by Greg McNeal this past week. McNeal highlighted a post written by Paul Lukacs in April; Lukacs wrote about his experience reentering the United States after a trip to China:

“Why were you in China?” asked the passport control officer, a woman with the appearance and disposition of a prison matron.

“None of your business,” I said.

Her eyes widened in disbelief.

“Excuse me?” she asked.

“I’m not going to be interrogated as a pre-condition of re-entering my own country,” I said.

This did not go over well.

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It took half an hour and five federal officers before one of them acknowledged that I had a right not to answer their questions.

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Ultimately, the cops let me go, because there was nothing they could do. A returning U.S. citizen has an obligation to provide proof of citizenship, and the officer has legitimate reasons to investigate if she suspects the veracity of the citizenship claim. A U.S. citizen returning with goods also has an obligation to complete a written customs declaration. But that’s it. You don’t have to answer questions about where you went, why you went, who you saw, etc.

Of course, if you don’t, you get hassled.

But that’s a small price to pay to remind these thugs that their powers are limited and restricted.

Though we're well within our rights to remain silent when questioned, our ability to prevent intrusive searches of our luggage at the border is virtually nonexistent. Whether the justifications for such searches are as valid with respect to searches of data contained in electronic devices and computers is questionable. Notwithstanding, some courts have allowed those searches under the Fourth Amendment. A suit recently filed by the American Civil Liberties Union (ACLU) challenges these practices on First Amendment grounds. Mike Masnick described the ACLU's arguments:

Rather than a 4th Amendment challenge, the ACLU is going with a 1st Amendment challenge, saying that these searches violate an individuals rights to free speech and privacy, and specifically highlighting reporters who need to keep information confidential. While it's a different legal argument, I still don't see it passing legal muster. You still have the same problem of not "really" being in the country yet, and thus, not really being protected by the Constitution.

What's really silly, of course, is that Homeland Security knows that border laptop searches are a bad thing. It's why they've issued a warning to travelers about other countries doing laptop searches at the border. Apparently, they don't feel the same way when it comes to them getting to go through your laptop, however.

Scott Greenfield, who often discusses the deterioration of our Fourth Amendment rights, expressed his hope that the First Amendment will protect what the Fourth cannot:

The problem is [the Department of Homeland Security] isn't satisfied that computers pose no threat of physical harm, and use this opportunity to defend the moral fiber of America by searching the content. Why? Because they can. Whether framed in terms of looking for terrorist content or illegal images of kiddie porn, anything on a computer is fair game.

To the extent there's a saving grace, it's that even border searches must be reasonable, though up to now, the operative law treats computers like any other sealed container and considers a search of a laptop to be routine, per the 1985 Supreme Court decision in United States v. Montoya de Hernandez, 473 U.S. 531. No appellate court has as yet recognized that the content of a computer isn't a bag of diamonds, but contains thoughts and information that a person might not want others, including the government, to see.

The simple answer is that if you don't want the government to know what's on a computer, don't bring it across the border. Of course, this defies modern reality and the pervasiveness of computer use in our lives. Computers are our diaries, files, calendar, lives. To shift the onus to Americans traveling abroad to either go computerless or suffer the border guard rifling through your hard drive offers a Hobson's choice. We cannot do without our computer.

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There are some bright spots elsewhere, with the rulings as to the use of GPS and cell records to "follow" people, but as yet the border remains as closed to privacy as ever. Hopefully, this coalition action will be our best opportunity to address the monumental privacy issues, the ones that bear neither connection to any legitimate purpose for a border search nor a sound respect for privacy.

Finally this week, Dan Hull asked, "Isn't employee (and associate) satisfaction the responsibility of both employers and employees--but mainly of the employees themselves?" He attempted to set our priorities straight:

Consider these "new metrics", in order of their importance in the scheme of All Things:

1. God, the Buddha, Jesus, Muhammad, The Moral Order in the Cosmos, Great Spirit, Sacred Oaks, the Watchers, Eric Clapton.

2. Your family. Close friends.

3. Your customers, buyers, clients. #1 for Work.

4. Your company. #2 for Work.

5. Employees, associates, and the help. #3 for Work.

6. Pets. Animals.

7. Plant Life.

8. Rocks. Cars, household appliances, PI and insurance defense lawyers, some books, some other material things.

9. Airports that make sense. Cheetos. The 1968 Chicago Convention-era "drug implement" of some kind crafted from an actual billy club and given to me in 1985 by a now-dead famous writer. (Please, no jokes or comments; too easy. No, it wasn't Lillian Hellman.)

10. Traveling the world. Reading the classics. Dinner with Annabeth Gish or Parker Posey. (Should be #5, #6 and #7 if you can "afford" them.)

I don't see much there to argue with, apart from his prioritization of Parker Posey. Ms. Posey, if you're listening, I want you to know that I value you much more highly than he does. Sure, Hull's more handsome, erudite, accomplished, and wealthy than I am, but I have it on good authority that the interior of his private jet is upholstered with the pelts of baby seals he clubbed himself.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Maunet, Evan on Engineering Software, and Paris Odds n Ends Thrift Store.