A Round Tuit (48)

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.

Though the rise of digital media has made copyright much more familiar to the younger generation than it was for their predecessors, there remains a considerable amount of misinformation and misunderstanding about copyright issues. What is copyrighted? What's in the public domain? How much use is allowed as "fair use"? When someone oversteps, what is the appropriate remedy?

These basic questions touch on the law of copyright as it presently exists, but there's the law and there's the law as "everyone" understands it. The folk wisdom of shared misconceptions about copyright is documented time and again in blogs, articles, studies, and comment boards across the internet. Layer upon the actual and perceived law the concept of "copyright norms" and one can begin to understand where reasonable minds can sometimes differ about the nature and scope of copyright. When confronted with an unreasonable mind... well, let's just say that some people's ideas about copyright are spectacularly copywrong.

A case-in-point this week was that of Judith Griggs, editor of the Northeastern regional publication Cooks Source. Several years ago, a self-described medieval cooking enthusiast (and, really, who amongst us isn't?), Monica Gaudio, wrote an online article comparing earlier- and later-period apple tarts and pies recipes. She was somewhat surprised to learn recently that her article had been copied in its entirety (albeit with some editing) and reprinted without her permission in Cooks Source. As the originally-linked image of the article was taken-down, I've posted that image here, should you care to compare it with Gaudio's post. Although Gaudio was credited as the author of the Cooks Source article, she received no compensation for her work from the magazine, which is (for now) a commercial publication.

On her blog, Gaudio described how she contacted the magazine and the replies she received from its editor, Griggs:

I first phone the magazine then send a quick note to the "Contact Us" information page, asking them what happened and how they got my article. (I thought it could have been some sort of mix-up or that someone posted it to some sort of free article database.) Apparently, it was just copied straight off the Godecookery webpage. As you can see from the page, it is copyrighted and it is also on a Domain name that I own.

After the first couple of emails, the editor of Cooks Source asked me what I wanted -- I responded that I wanted an apology on Facebook, a printed apology in the magazine and $130 donation (which turns out to be about $0.10 per word of the original article) to be given to the Columbia School of Journalism.

What I got instead was this (I am just quoting a piece of it here:)

"Yes Monica, I have been doing this for 3 decades, having been an editor at The Voice, Housitonic Home and Connecticut Woman Magazine. I do know about copyright laws. It was "my bad" indeed, and, as the magazine is put together in long sessions, tired eyes and minds somethings forget to do these things.

But honestly Monica, the web is considered "public domain" and you should be happy we just didn't "lift" your whole article and put someone else's name on it! It happens a lot, clearly more than you are aware of, especially on college campuses, and the workplace. If you took offence and are unhappy, I am sorry, but you as a professional should know that the article we used written by you was in very bad need of editing, and is much better now than was originally. Now it will work well for your portfolio. For that reason, I have a bit of a difficult time with your requests for monetary gain, albeit for such a fine (and very wealthy!) institution. We put some time into rewrites, you should compensate me! I never charge young writers for advice or rewriting poorly written pieces, and have many who write for me... ALWAYS for free!"

I got nothing.

Nick Mamatas, a friend whom Gaudio had consulted before contacting Cooks Source, was the first of many people to point out how astonishingly wrongheaded was Judith Griggs' approach to copyright particularly and this situation more generally:

Hilarious! At this late date, I'm sure I don't have to tell anyone that the web is not considered public domain and indeed even public domain material often retains some vestige of the moral right so one can't just put one's own name on, say, Pride and Prejudice. Funnier to me is the implication that Griggs thought the obsolete spellings from the recipes Monica quoted were signs that the piece "was in very bad need of editing." Oh, what a maroon!

The story made its way around the web. Celebrated authors Neil Gaiman and John Scalzi took up the cause of an unknown writer writing on an obscure topic; their involvement and a broader groundswell of support for Gaudio brought the matter to the attention of widely-read blogs like Consumerist and Boing Boing, which circulated the story to hundreds of other sites. The slam of online attention swamped Cooks Source's Facebook page and brought down the magazine's web page. Boing Boing called it a "web justice driveby". Mike Masnick cited the affair as illustrating that social mores can be an effective means of copyright enforcement and that online communities can be adept at recognizing and correcting genuine wrongs, regardless of status:

One of the key points we've made over the years is that reputation is a scarce good, and doing something bad can be quite costly. In fact, in showing how social mores can often be much more effective than copyright laws in dealing with actions where someone is "wronged" by having their work copied in ways that appear to be unfair, we've suggested that social costs are a much more effective means of punishing those who do wrong.

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There are a few other interesting lessons out of this. First is that, contrary to what some people claim, you don't have to be a "big name" to make these things work for you. People have a sense of when someone has been genuinely wronged, and they step up. So, Monica was able to get attention for this, despite not being "famous" in the conventional sense. Second, contrary to the claims that the various "online mobs" that hang out in places like Reddit "just want everything for free," various online communities have always shown a willingness to stand up against situations where they feel someone was genuinely wronged. And that should give you an idea of what they really think of various situations where some record label complains about file sharing. It's a totally different situation, and people react accordingly.

React they did. On Facebook, a crowd-sourced examination of Cooks Source's past issues was soon underway and the results were remarkable. Nearly 200 posts turned-up several examples of articles reproducing information and artwork from personal blogs and major online sites alike. Edward Champion worked from there and documented the "lifted" content in considerable detail, noting that the evidence gathered (six separate cases) indicated that far from an isolated incident of inadvertent copying, this was commonplace at Cooks Source:

[N]ot only is Cooks Source in the practice of stealing articles and publishing material without permission, but the magazine often pilfers the images which accompany the content. Such was the case with two entries stolen from the website, Simply Recipes. In Cooks Source‘s July 2010 issue, the Simply Recipes entry on tandoori chicken was taken wholesale from the website, with the photo merely flipped over in print. (On the same page, a sidebar item on garam masala recycles text from the Wikipedia entry.)

I spoke with one publisher by telephone, who asked to remain unnamed for this piece, about a book excerpt that had run in a recent Cooks Source issue. The publisher later informed me that it hadn’t worked with Cooks Source before and that the magazine had never sought permission to use the excerpt.

On July 6, 2009, the website Behind The Curtain published an essay on a raspberry fritters recipe that she found in a 1942 cookbook. Not only did Cooks Source print the majority of the essay on Page 21 of its July 2010 issue, but three photos taken by Kathy Zadrozny had also been reproduced. This occurred despite the fact that Zadrozny’s About page contained an explicit copyright notice in relation to her images.

“I haven’t seen any reproduction of my articles anywhere nor have I heard of Cooks Source,” said Zadrozny by email.

The July 2010 issue also reproduced at least seven recipes from The Food Network.

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For every reproduction that I found, I made efforts to contact the original copyright holder. And the above examples demonstrate unequivocally that nearly the entirety of Cooks Source‘s material has been taken from other sources and that, in at least four instances, Cooks Source did not obtain the necessary permission to reproduce the material. The onus is now on Cooks Source to produce the appropriate paperwork to demonstrate that it secured the release. But since Judith Griggs is uninterested in returning telephone calls, since she has demonstrated a lack of concern for copyright, and not a single writer, publisher, or organization has come forward with proof positive that Griggs has played by the rules, one can conclude from the presented evidence that Cooks Source is a magazine that profits on theft.

While acknowledging that Griggs' copyright arguments and her actions were undeniably wrong, at least a couple of bloggers expressed concerns that this "web justice driveby" had degenerated into mob justice and bullying. At MSNBC, Helen A.S. Popkin wrote:

Indeed, the Griggs supposition is all kinds of wrong. The use of Gaudio's story falls under copyright infringement. You might also notice "Housatonic" is misspelled, and the editor who allegedly "corrected" medieval spelling of the original piece, spells "offence" like she's living in England. As for Cooks Source, evidence is emerging that ths incident may be far from its only offense.

For all of the above reasons, Cooks Source's Facebook page is currently hosting revelers who rejoice that the small locavore publication's website is crashing -- no doubt from all the rubbernecking traffic.

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But as I said, most of the information used by bloggers comes from Gaudio's original post, without further investigation beyond info to aid group cyberbullying.

Yeah, I said it. Cyberbullying.

The UK-based Technollama legal blog called the internet response "disproportionate":

Yesterday we got a very interesting lesson about law enforcement online. Imagine that you discover your rights are being violated in some way, and you are almost certain that you are on the right. Traditionally you had three options: do nothing, contact the offender to negotiate, or file a lawsuit. If you were lucky, well known and/or powerful, you may also have been able to contact the press. Nowadays there is another option, to unleash the Internet’s wrath via social media.

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Well, obviously Ms. Griggs is wrong in every point of her legal assessment. Thanks to the Berne Convention, all original works have copyright as soon as they are created, posting something online does not place it in the “public domain”, and her editing and “improving” the original does not change the fact that there was infringement committed. If she had wanted, Ms Gaudio could have used the large arsenal of copyright infringement tools available to American authors, including DMCA notice and take-down. But why bother with expensive lawyers when you have an Internet mob on your side? The mob posted the email for Cooks Source, and even their telephone number to ensure that they would get an earful. Then, the FB page became a source of amusement, honest wit, mindless abuse, and general lulz. Furthermore, Monica Gaudio unintentionally unleashed the anonymous crowdsourcing forces of the Internet onto one specific subject. Quickly, the mob found several other plagiarised articles, a list of Cooks Source advertisers, a list of places where the magazine is distributed… you get the picture. The mob was not happy with letting their displeasure known. They were out to destroy the magazine and erase it from the face of the Earth.

Here is where I have become worried. I despise the sight of mindless angry mobs, even if I agree with their grievances. The level of abuse and animosity directed at Judith Griggs is disproportionate to the offence....

Technollama asked rhetorically, "Why sue when you can use social media?" At the Popehat blog, Ken suggested that Cooks Source's actions and words had practically written a lawsuit if Gaudio cared to file it:

Judith Griggs is such an AWESOME editor that she feels that being a thief is justified because, in the course of her thievery, she improves the quality of what she has stolen. There’s a point at which someone’s sense of self-worth and entitlement becomes so freakish that it’s almost charming. Judith Griggs is well on her way.

Judith has, by the way, essentially admitted the elements of copyright infringement. Monica Gaudio could easily, and justifiably, sue Cooks Source. Perhaps some lawyer with a sense of justice would like her do so for free — it would be trivially easy to draft the complaint and a tree-killing set of discovery demands. Though the damages at the end of the suit would be tiny, the legal fees associated with the endeavor would very probably crush a small operation like Cooks Source like a bug. That’s the way our system works — usually I would say “unfortunately”.

But my sense of Monica Gaudio is that she’s too kind, with too reasonable a set of priorities, to do that.

Scott Greenfield, who's had his own struggles with content thieves, wrote:

The web is considered "public domain"? Maybe by children, scrapers and thieves, but not by editors of supposedly legitimate print publications, Judith. It's not that your former job at Housitonic Home doesn't blow me away with your importance and power, but the whole "what constitutes public domain" issue isn't left to Judith Griggs to decide. Trust me, Judith, it's not public domain around here.

Ken thinks that Griggs rationale for stealing Monica's content, that she edited it, makes Judith Griggs an "entitled jackass." I disagree. If this were done by one of the "anti-copyright because ideas belong to everyone" ninnies, then "entitled jackass" would be appropriate. That's not the case here.

You see, Griggs works for a commercial enterprise. That means they are in business to make money, and the way they make money is by creating content and selling advertising to food service businesses.

....

No, I don't believe that calling Judith Griggs, or Cook Source, an "entitled jackass" is sufficient, though I find it difficult to come up with an appropriate phrase that doesn't involve the use of profanity. And as I said above, it's my general policy not to use profanity, even when someone is as much of an arrogant, nasty bitch as Judith Griggs and deserves it.

A couple of bloggers discussed the widespread confusion amongst well-meaning people (Judith, take a step back), who struggle to distinguish content freely-available at social media sites from content in the public domain. Greg Lastowka echoed Greenfield's suggestion that the commercial nature of the Cooks Source copying was important to note:

The letter from the magazine editor is the exact sort of folk copyright that is fairly common among the public (though, thank goodness, a much rarer thing in commercial publishing!)

The Web isn’t public domain, but it is largely a free access sphere. ...my sense is that the Attribution/Non-Commercial rule maps pretty well to popular copynorms. In the Cooks Source affair, attribution was provided, so anti-plagiarism norms are not a problem. The real outrage was about the commercialization of Web-posted authorship in an offline format.

Jonathan Bailey discussed the dual meaning — or at least dual perceptions — of the public domain:

...Public Domain can actually mean two things. First, it is a legal term used to describe works without copyright protection, usually older works who have had their copyright expire. Second, it is a broad term used to describe things that are public, such as works posted online.

This means that some things can be in the public domain, in the more mundane sense, and not be in the public domain in the legal one. Considering that you don’t have to register your work to have copyright protection in it, nor do you have to include a copyright symbol with it, it’s best to assume that everything you see is copyright protected until you can prove otherwise.

However, many people, don’t seem to understand this difference.

....

Of course, the one thing that is even more striking than Griggs’ misunderstanding of the law is her attitudes toward Gaudio. The entire matter could have been resolved in a matter of minutes with a written apology and a small $130 donation. If Griggs had done that, the matter would have likely blown over without another sound.

Instead, she approached someone obviously upset and angry with an equally hostile attitude. Far from apologetic, she was insulting, demeaning and completely deaf as to the reasons Gaudio was upset.

Now, as a result of this, the Web has declared war on this small magazine, completely overrun its Facebook page, shuttered its site and, most damning of all, found other examples of Cooks Source pilfering content from other sources.

Now, it seems likely that Cooks Source will face legal action from one of the other victims of their lifting, including several major publications and its future certainly doesn’t look to be too bright.

The Cooks Source web page has now been replaced with a lengthy statement which, humorously enough, decries the copying of their articles and photos "without [their] knowledge or consent". After several paragraphs of playing the victim, Cooks Source manages to squeak out something of an apology for its misdeeds and the condescension it offered Ms. Gaudio:

We sincerely wish to apologize to her for this error, it was an oversight of a small, overworked staff. We have made a donation at her request, to her chosen institution, the Columbia School of Journalism. In addition, a donation to the Western New England Food Bank, is being made in her name. It should be noted that Monica was given a clear credit for using her article within the publication, and has been paid in the way that she has requested to be paid.

This issue has made certain changes here at Cooks Source. Starting with this month, we will now list all sources. Also we now request that all the articles and informational pieces will have been made with written consent of the writers, the book publishers and/or their agents or distributors, chefs and business owners. All submission authors and chefs and cooks will have emailed, and/or signed a release form for this material to Cooks Source and as such will have approved its final inclusion. Email submissions are considered consent, with a verbal/written follow-up. Recipes created in the Cooks Source Kitchen are owned by Cooks Source and as such approval is given for chefs and cooks in our area to use them. Artwork used is created by our staff, or is royalty-free or purchased “clip-art.”

However: Cooks Source can not vouch for all the writers we have used in the past, and in the future can only check to a certain extent. Therefore, we will no longer accept unrequested articles, nor will we work with writers or illustrators unless they can prove they are reputable people, provide their sources, and who, in our estimation, we feel our readers and advertisers can trust and rely on for accuracy and originality. All sources will be listed with the articles, along with the permission, where necessary.

To say this has hurt our business is an understatement.

It seems that Judith Griggs has been replaced as Cooks Source's editor and chief apologist by Bill Clinton's Lewinsky-era speechwriters.

It wasn't one of several instances of intentional and unauthorized copying; it was "an oversight of a small, overworked staff". With a couple of charitable donations, Monica Gaudio "has been paid in the way that she has requested to be paid"; the condescending e-mails and days of hemming-and-hawing was just a bonus, one supposes. The magazine "will now list all sources", though it cautions that those sources can only be checked "to a certain extent". They will only work with writers and illustrators who "can prove they are reputable people".

It's safe to say at this point that it's not the unsuspecting contributors to Cooks Source who are the disreputable ones.

Extraordinary. Incredible. Unprecedented. Absolutely stunning. At A Public Defender, Gideon was running short of superlatives to describe the Connecticut Supreme Court's order that a prisoner be immediately released from custody due to the particularly egregious prosecutorial misconduct in his case:

Typically, defendants appeal to the Supreme Court and raise all sorts of issues. Depending on who writes the majority opinion, it takes months or years for the court to rule on the claims. Here, the very next day, the court ordered this man’s release from prison.

So what were his claims on appeal? That the prosecutor engaged in extraordinary misconduct (I refuse to employ the current “impropriety”) by reading documents seized from Lenarz’s computer, which the prosecutor agreed were confidential and protected by the attorney-client privilege[.]

....

This is astounding hubris on the part of the prosecutor and misconduct (yeah, fuck “impropriety”) of the most intolerable kind. To knowingly read something so sacrosanct as communications between the defendant and his lawyer, made in preparation for trial suggest callous disregard for the Constitution and the very basic principles that ensure fair play in our system of justice.

Noting the case and Gideon's enthusiasm, Ken explained why he advises clients to conspicuously and repeatedly label privileged communications and why it doesn't usually matter:

You might think that the [labeling] is calculated to prevent police and prosecutors from invading the attorney-client privilege by reading my communications with my client. You’d be wrong. Nothing will prevent them from doing that if they feel like it. The labels are calculated to (1) deter those principled cops and prosecutors who see them, and (2) make it marginally more likely that I can get some sort of remedy when dishonest cops and prosecutors look at the labels, shrug, and read the communications anyway.

The ugly truth is that, in my experience, cops and prosecutors routinely, deliberately, and without any apparent regret invade the attorney-client privilege and read communications that are obviously between attorney and client.

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Why do they do it? Because they can. Because judges are indifferent or hostile to defendant rights or mere chickenshits who rarely recognize prosecutorial or police misconduct and even more rarely impose any sort of sanction when they do recognize it. Prosecutorial misconduct happens all the time with little consequence for the government.

So, naturally, it’s thrilling when judges actually impose consequences.

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A Public Defender is right to be jazzed over this. But it’s the exception that proves the rule, I’m afraid.

Bad prosecutors were something of a theme this week, with a widely-reported decision by a district attorney in Colorado, Mark Hurlbert, not to charge the driver in a hit-and-run incident with a felony. There may be perfectly valid reasons not to charge such a driver, of course; that he's a prominent financial adviser who would be obliged to tell his wealthy clients if he were charged with a felony definitely isn't a perfectly valid reason. Martin Joel Erzinger allegedly rear-ended a cyclist, Dr. Steven Milo, a liver transplant surgeon; then, leaving Milo by the side of the road with horrible injuries, Erzinger drove around for a while before calling Mercedes auto assistance (rather than the police) to report damage to his car. When police arrived and found him stashing a broken mirror and bumper in his trunk, Erzinger claimed not to know that he had struck Dr. Milo. Mike Cernovich wrote:

When it was reported that District Attorney Mark Hurlbert dismissed felony charges against a rich banker who slammed into a bicyclist, I wondered if Hurlbert had accepted a bribe. Hurlbert has high political aspirations, and recently ran for State Senator. Perhaps the rich banker promised generous campaign contributions in exchange for dismissing felony charges? It seems that Hurlbert must be accepting bribes. No other explanation makes sense.

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Hurlbert claims that his motives are pure:

“The money has never been a priority for them. It is for us,” Hurlbert said. “Justice in this case includes restitution and the ability to pay it.”

That is a lie, because restitution goes to the victim - in this case, the bicyclist. That is a lie, because the banker has substantial assets, and can pay a restitution order by tapping into savings. The victim, moreover, doesn't care about restitution:

Milo wrote in a letter to District Attorney Mark Hurlbert that the case “has always been about responsibility, not money.”

“Mr. Erzinger struck me, fled and left me for dead on the highway,” Milo wrote. “Neither his financial prominence nor my financial situation should be factors in your prosecution of this case.”

How can Hurlbert claim that a sociopathic banker must keep his job in order to pay restitution to the victim, when the victim himself doesn't care about that restitution? That argument is clearly fraudulent. Hurlbert is lying.

It's often been noted that the wealthy enjoy a different sort of justice in our justice system; Scott Greenfield suggested that this case demonstrates that even amongst the very wealthy, there's a pecking order where the criminal law is concerned:

Dr. Steven Milo is a 34 year old New York City liver transplant surgeon. Not too shabby. And yet, in the scheme of wealth and influence in Eagle Colorado, he's a piker. Not a criminal defendant without the juice needed to buy his way out of a prosecution, but the innocent victim of a hit and run who unceremoniously learned why he should have listened to his mother and become a Wall Streeter. That's where the real power is.

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The arguments made on Erzinger's behalf, that the felony would end his ability to work in his chosen field, eliminate his ability to pay restitution, and thus impose a secondary, harsher penalty than would be the case when a person of lesser earning potential becomes a felon, aren't exactly new ones. On the flip side, the argument was likely that this was not an act of deliberate, heinous violence, but an accident, and the subsequent flight was merely an improper reaction by a man confused, who made the wrong decision. All terrible, but not malevolent.

What purpose would be served by saddling Erzinger with a felony? No one will be safer. No one will be saved. It only makes things worse, and why do that?

To some extent, the arguments have some merit. I know because I've used them myself, many times. It's a disingenuous argument in many respects, but we do what we have to do on behalf of our clients, even when we know that the same conduct by someone who wasn't wealthy and successful would land him years in prison. At least a felony conviction.

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It's got to suck to be a New York City surgeon, a person who expects to have his interests and wishes treated with great respect and deference, and end up run down by a Smith Barney money man, one of the few with far more juice than him.

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Whether it's rank hypocrisy, a pathological abuse of discretion or, as Mike [Cernovich] suggests, that Hurlbert is on the take, I can't say. But it's clear that his erratic and inexplicable exercise of prosecutorial discretion has turned his office into a farce. Given that he holds an elective office (and is seeking other, higher office as well), whatever explanation exists for Mark Hurlbert's conduct as District Attorney must appeal to his constituents. Perhaps they see him as compassionate, yet tough, in all the right ways.

The Hayes trial in Connecticut (yes, Connecticut does seem to be the center of the criminal justice universe, blawgospherically-speaking) has not been justice's finest hour. Whether one supports the death penalty or opposes it, the trial's sickening details and circus atmosphere seem calculated to diminish our faith that "justice" exists at all, much less in our system. As the jury's deliberations neared their end, Norm Pattis optimistically suggested that the length of those deliberations and the detailed notes sent by the jurors portended that they would reject the death penalty:

Late this afternoon, the jury sent a note rare in its level of detail. It suggests that the jury in this case is within two votes of never reaching the question of whether Mr. Hayes should be put to death at all. If this note reflects the jury's real votes, Mr. Hayes, and with him all who oppose the death penalty, is within striking distance of victory.

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The Hayes jury stands poised to advance the argument of abolitionists nationwide. Rejecting death in this savage and horrendous case will conform to the evolving standards of decency that have led every other democratic society to reject a penalty barbaric both for what it does to the person executed, but for those imposing it.

I hope this jury has the courage to say no to death. They appear close to doing so, offering hope that the state's effort to kill in this case, and in future cases, will be be classified a strike out. It is dangeous business this contemplation of the meaning of a jury note. I hope I am reading it correctly.

When the verdict was announced, Pattis found that his optimism had been misplaced:

A rump jury of twelve Connecticut residents carefully screened to exclude any member who opposed the death penalty voted to kill Steven Hayes today. The state went a perfect six for six, winning each and every capital felony count. To those of us who oppose the death penalty, today was a sheer act of barbarism. The state, which cannot give life, has now received permission to take what it cannot give. This is not justice. This is the savagery.

In the end, there was but one hero in this case: The lawyer for Mr. Hayes, Tommy Ullmann. When an angry state lined up and volunteered to kill Hayes, Ullmann stood by his side. He walked his client to the rail of the jury box during closing arguments for jurors to behold the man. I thought in that moment that the spark of human decency would have been kindled and jurors would not kill. I admire the vigor and integrity of Ullmann's defense of his client. Ullmann sought something more than the common denominator of easy fear and rage. That this jury aimed so low is not Ullmann's fault.

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The crimes of Steven Hayes were sick and horrifying. So are the verdicts of death returned today. And so, finally, are we. The man offered to plead guilty long ago. He wanted to die. But the law forbids a man to submit to the death penalty. So he fought, and we watched and hung on each gruesome word. Next year we will do it all over again in the case of his co-defendant Joshua Komisarjevsky. This taste for blood we've whetted won't go long without new satisfaction.

Justice wasn't done in New Haven today. The verdict was all but inevitable, but still it was a sick farce. And we loved every minute of it.

Gideon wrote that "in death, there are no winners":

My only hope is that one day, we as a State can look back upon this and other sentences of death with a certain sadness coupled with the knowledge that those days are past us – that we no longer ask our citizens to stake their mental well being on the anguishing task of deciding the fate of another man’s life – that we are no longer in the business of adjudicating worthiness to breathe.

Until then, I mourn. For this morning, Steven Hayes was the only one with blood on his hands. Now it’s on all of ours.

Scott Greenfield responded to Gideon's post:

But do we all have blood on our hands because of this verdict, as Gideon suggests? It's melodramatic, but so is just about everything surrounding this verdict. To some extent, we have have always had blood on our hands, the blood of children murdered on the streets, starving to death, dying for lack of medical care, dying on drugs, dying in a shoot out with cops when trying to rob a liquor store with their teenage friends. And when they die in the execution chamber.

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I can't say that I care deeply about what happens to Steven Hayes. In fact, I really don't care at all. My interest is solely focused at the pure question, whether capital punishment is a proper sanction for society to impose. Nothing about this case causes me to change my mind, and believe that capital punishment is the right thing for the state to do.

And so I keep hearing that this is Justice. Lots of people say so today. But it's not my justice. And there's no blood on my hands today that wasn't there before.

Jeff Gamso aptly summarized what many legal bloggers wanted to say about the Hayes verdict — that because capital punishment is different, it was right that the jury struggled to reach its decision in a case which seemed to most observers to be a cut-and-dried one:

Killing a man ought to be hard. And though Steven Hayes still breathes, though it will be years and years before his murder by the State of Connecticut should that ever occur, the jurors killed him. They could have saved a life. They chose not to.

Steven Hayes, too, could have saved a life or more. He also chose not to. I'm being neither naive nor callous nor simplistic about this. The acts are not equivalent.

Hayes acted, so the jury concluded, with criminal intent. He intentionally caused great harm (and not just by killing) in violation of society's rules and norms. His were acts of malevolence, or so said the jury. The jurors were different. They acted with care and deliberation. They obeyed the norms and rules of society. They weighed and balanced and considered. They discussed and deemed. They compared notes and considered some more. They were careful and calculated.

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And oh, how important it is.

And we/they decided, carefully, dutifully, that Steven Hayes should be killed. Not that he should die. Death is a given. Of course he would die, as we all shall. Unlike most of us, he would die in prison. Regardless of what the jurors did. Their job, for us, as our representatives, as us, was to determine how. They chose, elected, to become the engine of Steven Hayes's death.

What Steven Hayes did and what the jury did are not equivalent.

What I'm not sure about is how you measure the difference.

Kashmir Hill has assumed "emeritus" status at Above the Law, but she made a return visit to discuss a topic she'd written about earlier this week at her new home, Forbes. Hill noted that "[t]aking off your clothes and getting fondled is usually fun… except when it happens at the airport" and wrote about a challenge to the TSA's new and particularly creepy "whole-body imaging" devices:

One of the interesting claims in the current brief that was not included in EPIC’s original request for a stay is the allegation of a violation of the Video Voyeurism Prevention Act. That would be the law passed by Congress in 2004 that is used, in part, to fight upskirt filming. The Act prohibits the filming of private parts — it makes an exception for cleavage — when individuals have a reasonable expectation of privacy, even if they are in a public place.

The law specifies that it applies in “circumstances in which a reasonable person would believe that a private area of the individual would not be visible to the public, regardless of whether that person is in a public or private place.” So if people know that their private areas are visible, does the law apply?

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The government will be filing its reply brief by December 1, and then the case should move on to oral arguments. If the court were to rule in EPIC’s favor, the TSA will have to “revise its airport screening program so that it complies with federal law,” says EPIC president Marc Rotenberg.

California's lame duck governor will seemingly enjoy some lasting notoriety not so much for his gubernatorial achievements as for having his name on a few notable Supreme Court cases. This past week, Schwarzenegger v. EMA, a challenge to California's ban on sales of violent video games to minors, reached the high court; as Mike Sacks reported, the case was closely-watched by many, including Nintendo's Mario. Lyle Denniston didn't indicate whether Mario stayed for arguments, but did provide an excellent recap of the Justices' questioning:

With Justice Stephen G. Breyer pushing the notion that “common sense” can work as a constitutional principle, the Supreme Court on Tuesday looked for a workable way for states to keep younger kids away from truly violent video games, even while seemingly convinced that California has not found that way. The oral argument swung between deep skepticism about state legislators’ ability to define “violence” without suppressing too much free expression, and an abiding feeling — a “common sense” perception — that there is a social problem with children committing digital murder or maiming on their computer screens.

If there was one strategic error by counsel in Schwarzenegger v. Entertainment Merchants Association (08-1448), it was by the video game industry’s lawyer, contending under questioning that there simply is no problem that legislatures need to try to solve nor is there any way constitutionally that they could craft a solution if they tried. By the time Paul M. Smith offered those thoughts, the Justices appeared well on their way to believing just the opposite.

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The Chief Justice finally got Smith to concede that perhaps a law narrower than California’s could be an alternative, but Smith added that “the key thing is you strike down this law.” But, backtracking, the lawyer again said that the English language could not be used to fashion a law that “gets to what they claim” is the problem with video games. He soon was telling Justice Breyer that “they have not shown any problem.”

And, under close questioning by Justice Alito, Smith again argued that “the problem is already well controlled,” by parents. “Just to be clear,” the Chief Justice then asked, “your answer…is at this point there is nothing the state can do.” After pressing further for a “clear answer,” Smith said “The answer is yes, Your Honor.” That prompted Justice Sonia Sotomayor to say with some exasperation: “How can you say that?…There is still proof out there and an abundance of it that kids are buying the games.” Justice Breyer wanted Smith to make the point again, and got the lawyer to say that there is nothing the states can do.

It was Smith’s low point, but he made it without a hint of regret. It was apparently basic to his whole argument, but it appeared to have left an unsatisfied Court.

Finally this week, one of the giants of the legal blogosphere, Eric Turkewitz, posted his 1,000th post. He took a look back at four eventful years at his New York Personal Injury Law Blog and offered some fine insights. Though he didn't say that in making it to four years and achieving the levels of notoriety and respect he's earned, his effort has been a marathon rather than a sprint, Turkewitz' 1,003d post demonstrates that he knows something about that topic as well. Congratulations, Turk.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Gode Cookery, Justice for Stephen Reed, and Paris Odds n Ends Thrift Store.