Mosaic Fragments

Jordan Scott v. Stephenie Meyer.

Not that I've actually read either's books, but somehow I feel like it would be a close call as to who was the better writer. 9_9;;

From the way Law.com describes it, though, I don't think he really has a case. [How many cliches do you have to throw together before it becomes "original"? Is it like collecting phone book entries?] But it's amusing.

I think it's safe to assume that most of you on the flist who have had occasion to think about it consider the California voter initiative system to be pretty screwed up. As Joel Stein (one of my journalist heroes) said in a recent issue of Time, (paraphrased) In California we vote on everything, including whether we still have to keep voting. There is no good reason our state constitution needs the bazillion amendments it has -- it kind of defeats the purpose of it being a constitution in the first place and not just a statute.

Anyway, last week I discovered another delightful legacy of the voter initiative system. Ironically, it was also a Prop 8. 1982's Prop 8 (linked in case you want the text), also known as the "Truth in Evidence" amendment, was one of those "Victims' Bill of Rights" type proposals. I haven't read the actual text, but apparently somewhere in there, it more or less said "In criminal cases, all relevant evidence is admissible." Which makes it very important for the bar exam.

Now, like all constitutional amendments, it just inserts itself into the constitution, and all contrary statutes must give way. But it's not like there's automatically some statutory revision process, so all the contrary statutes are still on the books. Even so, that would have been okay in this case, because relevance is the lowest threshold that all evidence must pass. Normally, you then have to consider a whole bunch of other things like whether it's character evidence, whether it's hearsay, whether it's privileged, and so on. But Prop 8 just wipes out all of that, right? So now, if it's civil, you use the statutes, and if it's criminal, you just ask for relevance. Simple!

...not.

Courts did not like Prop 8. (For good reason, IMO. More on that later.) So they decided that huge swaths of evidence law were not, in fact, invalidated by Prop 8. Including most of the character evidence rules, the rule against hearsay, and privileges. Where Prop 8 proposed to wipe out everything, courts resurrected most of it. But, unfortunately, not all of it. So now you have to figure out how things work under the normal rules, then figure out if Prop 8 trumps, and only then do you know whether evidence is admissible or not.

As an aside, I wonder if there was public outcry against this "judicial activism" and controversion of the will of the people and all that. I mean, why wasn't there an attempt to pass another amendment along the lines of "No, we really did mean the hearsay comes in, too"? Could it be that most voters and probably the drafters of the initiative didn't know the first thing about evidence law and why it is the way it is? Heaven forbid!

Here's the way it works. Relevance is a pretty simple question that really boils down to "Do we care?" If you're suing in strict products liability for a manufacturing defect and the manufacturer is trying to show how careful it is in making its products, we don't care. It's strict products liability: the product's defective, the manufacturer pays. Obviously, we're not going to let in evidence that doesn't make a difference to the case.

But that doesn't mean all relevant evidence should come in. There are all sorts of other problems, which is why there is so much evidence law. Just a few to think about: evidence that mainly plays to the irrational sympathies of the jury; evidence that is mostly a waste of time; evidence that is totally unreliable; evidence that a jury will believe too readily. Here's an example: a sole eyewitness testifies that she saw the defendant shoot the victim. Next, the prosecution calls another witness to testify that the first witness is a good and honest person. Relevant? Yes! It makes a huge difference whether the first witness is a liar or a saint who has never told a lie in her life. Under Prop 8 by its literal terms, the prosecution can call witness after witness just to bolster the first witness' trustworthiness. If each witness' testimony even incrementally increases the chance that the first witness was telling the truth, then it's relevant. Are you, potential juror, going to stand for that? I didn't think so.

And thus, after the relevance requirement comes a blanket rule that judges have discretion to balance evidence's probative value (how much we care) against unfair prejudice, waste of time, confusion of issues, etc. (And the courts saved this one from Prop 8.) So maybe that's good enough. We like case-by-case determinations because they are very flexible and allow justice to be done. Right?

Except case-by-case determinations become in themselves a waste of time. There are some issues that come up so often, that so consistently have a single answer, that we make them into rules. Like the rule against bolstering a witness' credibility before that credibility has been called into question. (I.e. wait until the defendant calls her a liar, and then you can start calling people to testify what a saint she is.) And that is evidence law. (For the most part. There are rules that people will find stupid, of course, but you can usually at least see where lawmakers were trying to go with it.)

So... Prop 8 was shortsighted and stupid. And the courts were wise to cut back its scope. But where Prop 8 still holds sway, analyzing evidence problems is a pain in the ass. I guess all I can do is hope that the evidence question this summer, if there even is one, is a civil case.

The Supreme Court denied certiorari today in Aventis v. Amphastar, despite Aventis' beautiful petition. :(

And thus, inequitable conduct, which the Federal Circuit once famously called a "plague" on patent litigation, lives on.

I'm wondering if this news will even break on Patently-O. SCOTUSblog never cared at all about the petition, but I think it was pretty notable to patent people. I just happened to want to check on it today on Westlaw, and there it was: cert. denied, April 27, 2009. :( :(

...then again, articles like this one make you not want the Supreme Court touching anything that needs sensible resolution. (I know, patent law has nothing to do with gender -- except that women are underrepresented in patent litigation -- but I can't believe their inanity can possibly be triggered only by gender issues.)

So recently there's been a bunch of stuff about Code Geass in this magazine called Continue, including author interviews (?), a bio of Lelouch, and ( spoilers. )

The third time this was posted on code_geass, I responded that I was not going to accept any beyond-the-episodes evidence as conclusive. If the author wants ( spoilers to be true, he should say so in the episodes. ) I don't care what it says in some official guide or interview. What you broadcast is what you've got -- don't go telling the fans different stories after the fact. It's basically the same as saying, "Oh, I had this beautiful vision of how the story would go . . . but then the producers cut the number of episodes in half." Sucks to be you, but it doesn't change my opinion of the final product. I would have loved to see the other version, but if I can't, I'm going to ignore it entirely.

Anyhow, a few minutes later, I thought, "OMG, did I just apply original public meaning to Code Geass? @_@" Justice Scalia would be proud. Down with legislative history and authorial intent! D:

Con Law 101: Originalism is basically a theory about interpreting the U.S. Constitution that says you should look to the world of 1789 (or thereabouts) to figure out what the document means. Original public meaning is the form that says the meaning is what the public of that time would have understood the Constitution to mean. Other forms are framer's intent (what the framers intended it to mean when they wrote it) and ratifiers understanding (what the ratifiers understood it to mean when they ratified it). Compare reading a poem and thinking about what thoughts it inspires in your mind, versus trying to figure out what the poet was trying to say.

The district judge permanently enjoined all of the proposed rule-changes issued by the Patent Office. Wow. Everyone thought he'd say something like: well, parts of the rules are no good, and you can't impose them retrospectively, but going forward, the 2+1 and 5/25 rules are go. I think a lot of practitioners were acting under that assumption, anyway.

I didn't pay attention to who else wanted the rules to go through. If there are people in Congress who liked them, I guess they can just throw them into the patent reform package, which should get spit out of there someday. It's not a problem of constitutionality or something; just that the statute authorizing the Patent Office to make rule-changes doesn't extend to letting them make "substantive" changes, and the judge found that these rules were substantive. Also, I wonder if the government will appeal.

I mean, this isn't an April Fool's joke, right? Even Dennis Crouch doesn't have the free time to write up a fake 26 page opinion striking down the rules, does he? And he wouldn't go so far as to fake Judge Cacheris' e-signature and the e-filing header, would he?

I dunno, I don't have a lot to say about it. I'm just surprised. Maybe I should pay more attention now . . . if all the action isn't over already.

AnimeOnDVD has the following post today:

Attention Japan (03:51 PM EST): Claiming that the lack of region coding on high definition formats is an impediment to releasing there due to the fear of reverse importation is a straw man argument. Considering that the majority of cheap DVD players available worldwide and the easy availability of information on how to unlock them online, making this claim is the same beyond bordering on silly. It's like claiming that having locks on your front door are the most important thing yet you leave all your windows and back door unlocked at the same time. DVD is a completely open and broken format and the people that want to reverse import from Japan to the US are already doing so and have done so for years now. HD DVD is completely region free and Blu-ray has the US and Japan in the same region and has set rules in place to encourage no region coding. This is simple fact and the sooner that companies come to grips with it and move forward with a better plan, the less silly companies will look when posing such straw man arguments.

I thought this was interesting because we basically had the same conversation several times over in my Innovation Industries class: You're not going to stop piracy. You're not going stop circumvention of region encoding. What you need to do is make yourself more attractive than the pirates. Release things fast. Make it convenient. Make it high-quality.

The person who wrote the AnimeOnDVD post clearly is on top of DMCA cases: the locked doors/open windows analogy is what the court used when holding that making third-party toner cartridges that crack the manufacturer's "secret handshake" is not circumvention of a measure meant to prevent access to the printer code. [Courts really like calling it a "secret handshake" instead of authentication, which is kind of endearing and frustrating at the same time.]

A week or two ago, Justin Sevakis at ANN wrote an open letter to the anime industry that was a nice follow-up to my post about Gonzo's president lamenting the demise of anime at the hands of pirates.

[I've been too caught up in end-of-semester stuff to really read and digest the letter, but I guess I should gather all the pieces together now. I'll write more about it later, especially since I'll be writing a paper on copyright infringement over break. I'm also creating a tag called "digital copyright", since I seem to write about these issues enough to warrant it. I guess I am, and will always be, a copyright dork.]

A few days ago, the president of Bandai Visual USA responded to the open letter. Apparently AnimeOnDVD thought this was a coup, saying what was needed was for high-ups in the industry to talk about this, and for people to tell U.S. fandom directly about the Japanese side. Personally, I found the response pretty unsatisfying. Along the lines of, "Thank you for your feedback. It will receive due consideration." And then back into rhetoric about "please buy our DVDs and recommend series to your friends" and "boo hoo, look at us, we're trying so hard". Maybe I'm exaggerating, but it just seems like they didn't want to give serious thought to this at all.

Like I said, I haven't actually read the entire letter yet, but the first thing I got from it was: "Please, please, let's show that we have learned from the RIAA and the MPAA." And I really wish we could. But it doesn't seem like the industries are interested in learning.

I vaguely remember the days when DeCSS flew around the internet with the industry desperately chasing after it and trying to put it back in the bag. [In case you don't remember, DeCSS is a program for decrypting DVDs. When it first came out, the industry started filing lawsuits and sending takedown notices left and right. In response, people kept spreading the code farther and wider -- on t-shirts, as domain names, etc. The only part that really stuck with me was that people started singing it in songs, clearly trying to assert some kind of fair use defense. Only now do I know that, sadly, there is no such broad fair use defense for anti-circumvention.] If the industry ever wanted to show how utterly powerless it was, I think that was it. So after that fiasco, I thought they would have figured it out: the more you try to suppress something, the more the libertarian masses on the internet are going to fight it.

That's why I was shocked to find out in Innovation Industries that the exact same thing happened with HD DVD. Smart computer people discovered the key that encrypts HD DVD, a set of hexadecimal values that starts with "09 F9". They posted it online. The people in charge, AACS, responded by filing lawsuits and sending takedown notices left and right. In response, people started putting it on t-shirts, as domain names, etc. They kept posting it on Digg and voting it up so that the entire front page was covered with it. At first Digg tried to cooperate with AACS and took it down as fast as they could. Then they realized that the mobs were against them, so after they recovered from the server crash that resulted from everyone voting up the 09 F9 posts, they gave up and even posted the key themselves. AACS came out looking ridiculously impotent. Not to mention stupid, because the key is useless in the hands of most people -- not many people know how to write software that actually uses the key to be able to rip HD DVDs.

Of course, both DeCSS and 09 F9 were indirect threats to copyright protections. Piracy is direct. But the point remains: you just can't stop it. But the hysterical "fansubs are the devil" line of rhetoric suggests that they haven't really learned that what they really need to do is either preempt or coexist. Direct, head-on attacks just won't work.

Anyways. More thoughts later.

OMG, if there was ever a quiz where I need to see all the possible results, this is it. I've only seen Rules 8(a), 12(b), and 20(a) so far. :( I wanna know what Rule 56 says.

...but I should probably go to bed so I'm not dead at my callback tomorrow. >_>;;