info.law @ NYU

Professor Volokh has publicized Lawtopic.com and asked people to blog about it and spread info around the law student community. It’s a pretty interesting idea. Professors and other legal scholars contribute ideas for legal essays that might be appropriate for students. In theory, people will post interesting and novel topics.

It’s a place I think I’ll be looking at more as I try to come up with a topic for the NYU Law A paper.

I ran across a rather strange ruling out of the United States Court of Appeals today. McCready v. eBay at first seems just kind of funny. An accused eBay crook, McCready, has filed multiple lawsuits against eBay and third parties in an apparent attempt to either win back his good name from slanderous feedbacks on eBay or further disgrace himself with frivolous, and potentially sanctionable, “abuse of process”.

The Court really lays onto Mr. McCready, and from what they describe, he might even have earned it. The court, however, treats McCready’s claims against eBay under the Fair Credit Reporting Act somewhat flippantly.

The FCRA protect consumers from agencies that “regularly engage[] in … the practice of assembling or evaluating consumer credit information or other information on consumers for the purposes of furnishing consumer reports to third parties” 15 U.S.C. 1681(a)(f). McCready claimed that the eBay Feedback Forum was a “consumer report” for the purposes of the act.

This doesn’t seem crazy to me. Mob judgemental behavior on the Internet is getting out of hand. Cellphone pictures of a subway pervert start off reasonably, hounding someone who stole your cellphone seems amusing, but flash mobs in China can attack and harass adultering men and women. As we start to place substantial value in peer generated social status quantified on the Internet, we’re going to need protections.
The court rejected Mr. McCready’s FCRA theory by ruling that the eBay feedback was not a “consumer report,” but their ruling has an odd twist. The court found that a consumer, under the FCRA “must, at minimum, be an identifiable person.” Since the eBay forum uses “users’ self-anointed ‘usernames’” the court found that the users were anonymous outside of eBay and thus not consumers under the Act.

This can’t make any sense. The identity that links a consumer report with a credit agency is an arbitrary set of strings, such as SSN and DOB. Granted, they’re globally identifying in a way that an eBay ID, in theory, is not. But simply because an identity is fractured into multiple spaces, each with a different recognition mechanism, shouldn’t imply that the same reputation values aren’t carried into each space.

Bad cases make bad law, they say. Hopefully courts will look into online rating systems somewhat more carefully when more legitimate claims arise.

Anyone seen any other cases like this?

I see that Public Knowledge is blogging about moral rights and the CleanFlicks decision today.  Tim Schneider asked in a question to my first post on this whether stricter European copyright laws are justified out of moral rights. I’m not sure if that’s historically true, but a system that derives copyright from some moral or intrinsic right of the creator is bound to be far stricter than one that derives copyright as a type of monopoly subsidy in support of a social policy.

The language of copyright issues in the U.S. today sounds more like the a moral rights approach than the laws read. When politicians and content producers talk about Infringement as theft, they’ve transformed copyright infringement into a kind of malum in se, rather than a kind of malum prohibitum.

Thoughts?

Joe Grantz, on his blog (via Freedom to Tinker, has posted an interesting overview of the recent CleanFlicks decision. CleanFlicks, along with others, was producing less raunchy versions of popular movies that were then distributed on DVDs to home consumers. CleanFlicks purchased a legitimate DVD copy for every edited DVD they sent out in an effort to stay legit. Congress recently provided statutory protection to companies that manufactured machines that could do this just-in-time when provided with a skip list, but did not protect companies like CleanFlicks, something the court found significant. I thought the ruling was interesting, if only because it seems to represent the artist’s moral rights approach to copyright law, rather than the traditional U.S. utilitarian view. Moral rights, at least in civil law systems, can apparently a lot further than U.S. style copyright law. In this case, the similarity lies in an artist’s right to protect the integrity of his or her works. I’m not sure how the willingness of the directors to allow TV edits of their movies would impact this type of analysis, but that’s certainly an interesting question. The bigger issue may be in fair use analysis. Fair use makes sense, I think, when we think about socially valuable or important uses that copyright law would, hopefully unintentionally, suppress. I guess that could be considered a type of market failure correction in copyright law, when transaction costs or unreasonable actors need to be corrected. In the case of moral rights, however, the analysis is more rawly normative that socially utilitarian. If you truly believe that an artist has an inalienable moral right to preserve the integrity of his or her works, that may be very difficult to reconcile with socially valuable uses. Any thoughts on scholars who’ve looked into this subject?