One More Reason For Parents To Freak Out About Facebook: They Might Be Liable For What Their Kids Put On There!

 As if it weren't enough that all good 'Muricans had to be very afraid of The Ebola, ISIL, the repeal of the Second Amendment by Executive Order, being able to get affordable health insurance or having other people be able to marry their choice of mates, now they have to be afraid of being liable for texts or for libelous stuff that their offspring cut and paste on the Facebook.

A Georgia court, in a cast styled Boston et al v. Athearn et al, has held that there may be a question of fact sufficient to survive a motion for summary judgment in a case involving parents being sued for the Facebook shenanigans of their offspring.

It seems that Dustin (13 at the time) and Melissa created a fake Facebook page ostensibly for one of their classmates, Alex.  Dustin used a computer supplied by his parents and the family internet account to do this.  Dustin and Melissa posted altered and unflattering pictures of Alex and used the account to do status updates suggesting that Alex had racist views and was gay.  The impish scalawags also used the fake account to post comments on other classmates' Facebook pages that were graphically sexual, racist or suggested that Alex was taking drugs for a mental condition.  Kids will be kids, amirite?

Alex's parents contacted the school and Dustin admitted his transgressions.  His parents learned of this in May of 2011 and grounded Dustin for a week.  However, his parents did nothing to cause the fake account to be taken down and Alex's parents sued them in April of 2012, alleging, inter alia, that they were negligent in failing to supervise or control their child.   

Dustin's parents filed a motion for summary judgment, claiming that as a matter of law, they were not liable because the actions that led to this took place before they were aware of it and therefore it was not foreseeable.

The Court held that there was a question of fact in that a jury might find that the failure to take any action to remove the offending material for several months after finding out about it was the proximate cause of some of Alex's injuries.  The Court therefore denied a portion of the motion for summary judgment.

It should be noted that this does not mean that the parents are liable, only that the question may be allowed to go to a jury and not dismissed early by the Court.  So, stay tuned to see how deep in the doghouse Dustin gets and whether he gets written out of the will.

Homeland Security Gets Kansas City Panties In A Knot.

You might know that it would take an article on unmentionables to get me back on the blog horse. Well, thanks DHS, for just such a push. It is reported that Homeland Security raided a Kansas City store and confiscated several dozen pairs of panties with the Kansas City Royals trademark on them.

OK, several questions: (i) Panties?; (ii) Homeland Security?; and (iii) Why Kansas City and not my Cardinals in the World Series? Oh, and what does this have to do with law and technology? More on that later.

First, Panties? A Kansas City shop had hand drawn the KC logo and a crown and printed them on ladies panties. Apparently, it was too similar to the actual Kansas City logo and this brought down the wrath of Major League Baseball, which manifested itself in a raid by a division of Homeland Security set up to police intellectual property right infringements. In the past this has sometimes been handled on a local basis by interdictions on the part of local or state police on tee shirt sales at concerts or illegal use of music in bars. However, apparently this is now a national security matter.

You may ask if counterfeit drawers are of such importance that it justifies a diversion of resources such as this. I might ask the same thing. DHS has a division set up to police this type of thing, primarily at the behest of the movie industry. It would have made more sense if the panties were Ebola laden or carried the ISIL logo. Anyway, a word to the wise. If panties can be confiscated, it is apparent that software or hardware and bio-medical equipment or compounds, whether carrying a trademark or not, could become subject to this treatment. That's when technology and law intersect and you don't want to be in that collision.

Interfaces ("APIs") Are Subject To Copyright. No, They're Not! Are Too! Courts Continue To Muddy Up The Water.

There are a mere 37 pieces of computer code that are the subject of this face off between the tech titans, Oracle and Google.  We have followed this case since its inception and you can review the history here, here and here.

In the latest installment, Oracle appealed a lower court ruling that held that application programming interfaces ("APIs") were not subject to copyright.  We thought that the issue might be settled.  Not so fast, my friend.  A three judge panel in the Federal Court of Appeals for the Norther District of California has reversed and held that such APIs are indeed subject to copyright protection and the only question is whether Google's use is allowed under the "fair use" exception.  The panel remanded the case to the lower court for a determination of the possibility of such fair use.

After reading the very detailed opinion, the main facts to be gleaned are there was 7,000 lines of code involved, there were 37 different interfaces and the opinion is 69 pages in length.  There is much good discussion regarding the application of copyright law to interfaces and the fair use doctrine.  You should read it.  The law the court cites is extensive but some quibble with the application of such law.  Given past performance, the odds are even that the result will change on appeal.

Bitcoin, Everybody's Favorite Crytocurrency, Comes To A Bar Near You (Actually Near Us).

 We have flogged the Bitcoin phenomenon in this blog time and again (see here, here and here).  So when we learned that a bar (HandleBar) in the neighborhood of our office was installing the first ATM in the United States that handled Bitcoins, we were compelled to take a field trip to observe.  The ATM was turned on yesterday (Feb. 20 at 2 pm) so at 2:30 we took advantage of an 80 degree Austin afternoon to walk the short distance to HandleBar to see this miracle for ourselves.

When we arrived we found camera crews, on-lookers like ourselves, Bitcoin disciples and a queue of people seeking to use the technological wonder provided by Robocoin.  One of the Bitcoin disciples said that if I would open an account he would give me a part of a Bitcoin.  I downloaded the Android app Coinbase and he transferred 0.001 Bitcoin to me (apx. $0.64 based on yesterday's market).  I'm counting on a big upswing on this for my retirement.

While this all was interesting, we found we could not use Bitcoins directly to buy beer at Handle Bar.  We would have to have used the ATM to convert to dollars and then bought libations.  However, we could transfer money to Beirut almost instantly without fee or restrictions.  This failed to impress the smoking hot lady drinking and working in her Daytimer at the upstairs bar or maybe it was just me.

The ATM was located in the back of the bar in a dimly lit alcove.  The shape of the ATM and the activity of the people surrounding it was eerily reminiscent of the first monolith and ape scene (see above) in the movie 2001.  Maybe this is our guidepost to the next evolutionary step in money.  They are going to have to fix that beer purchase thing though.

Our Little Blog on LexBlog Gets Cited On LexBlog. How Meta Is That?

Changes At Our Place.

Nothing is as inevitable as change and all good things must come to an end.  We've all heard and used these platitudes.  The same is true with our firm.  Our good friend, partner and founding member of this firm, Stuart Hiserodt, has been offered and has accepted a great position with Centex Systems.  Centex Systems is a leader in the fast emerging field of electronic health records and health insurance exchanges. 

Stuart will be a great asset to Centex.  We miss him here but wish him the best in his new endeavor.

We will change our name to Stanfield Law for the time being.  You can see our marketing creativity continues unabated.


Following The "Silk Road". Where Exactly Was That Supposed To Go?

Originally, the Silk Road was a series of routes over which commerce traveled in Asia beginning over 2,000 years ago.  Silk, gold, technology, religion and diseases (e.g. bubonic plague) were carried and exchanged over the Silk Road.

Fast forward to the present day and the Silk Road was, until recently, a website accessible only in the deep web and only by TOR (The Onion Router), a network and browser designed to preserve your anonymity on the web.  Silk Road was the brainchild of fellow Austinite and former neighbor Ross Ulbricht.  Ross was a 2002 graduate of West Lake High, a school that I pass every day coming to work.  His Facebook page is still up and he seems like a pretty cool guy.  We even have a mutual Facebook friend.

However, when I visited Silk Road before the feds closed it in September and arrested Ross on Oct. 2nd of this year, I found that you could purchase most any kind of drug I had ever heard of and many that I hadn't.  Since I have a background in Pharmacy, that's a wide range of stuff.  Cocaine, Ecstasy, black tar heroin and 'shrooms were in abundance.  Apparently, you could also arrange for murder by hire and Ross is accused of that in regard to one of his clients on Silk Road supposedly threatening to expose everybody unless certain conditions were met.

The medium of exchange on Silk Road was Bitcoin, our favorite virtual currency.  When Ross was arrested, the FBI seized over $3,000,000 in Bitcoins belonging to Silk Road customers.  They were also trying to get an estimated 600,000 Bitcoins from Ross' personal Bitcoin wallet.  That's about five percent of all the Bitcoins presently in existence.

All in all, a very sordid story, including the allegation that Ross went by the pseudonym of the "Dread Pirate Roberts", which comes from my favorite movie "The Princess Bride".

So how does a 20s something, suburban, white bread guy go from wake boarding on Lake Austin to being one of the biggest drug dealers (or at least the facilitator) in the world ?

Apparently Ross is brilliant (degree in physics at the Univ. of Texas, graduate work at Penn State), a libertarian fan of Ron Paul and idealistic and naive.  On his Facebook page he wrote an essay on "Thoughts On Freedom".  On his LinkedIn page, he described an idealized version of Silk Road, when he wrote:   "Now, my goals have shifted. I want to use economic theory as a means to abolish the use of coercion and agression amongst mankind. Just as slavery has been abolished most everywhere, I believe violence, coercion and all forms of force by one person over another can come to an end. The most widespread and systemic use of force is amongst institutions and governments, so this is my current point of effort. The best way to change a government is to change the minds of the governed, however. To that end, I am creating an economic simulation to give people a first-hand experience of what it would be like to live in a world without the systemic use of force."

He apparently viewed Silk Road as beneficial because it was a place where people could obtain illegal drugs without the concomitant hazard of having to deal directly with a drug dealer.  Regardless of your view on drugs and their use, it would seem to be preferable if people didn't have to risk their life to obtain them.

In the end, despite his brilliance and perhaps because of his naivete, he got sloppy and used his real name and address in obtaining fake passports and made other mistakes that enabled his arrest.  This could have been a family member of any of us (assuming any of us has anybody that smart in our gene pool) and we would have been simultaneously amazed at  his drive, ambition and success and aghast at what he has wrought.

The Blog Gods Give Us The Winklevoss Twins Again.

We have devoted an inordinate amount of time and blog space to the exploits of the Winklevoss twins.  I won't take the time to do internal links to our posts but just type in Winklevoss in the search function on the side if you are interested.  However, when our creative (cue air quotes) juices run a little viscous, we can always do a Winklevoss post and for that, we thank the blog gods.

As you will recall, they are the guys that were unsuccessful in taking over Facebook, unsuccessful in suing their own lawyers when they failed and unsuccessful in overturning their unfavorable ruling in the Facebook lawsuits, even after several attempts.

Now they have been scooped again, in that someone else has beat them to the market with a Bitcoin investment vehicle.  They had made a filing to sell interests in a trust but because of the nature of their proposed investors, it has been slower going.  Hence, late to market.  However, in light of the Silk Road debacle (more to come on that soon) and its effect on Bitcoins, maybe that's not a bad thing for them.

So, in spite of the fact that they are excessively attractive, smart, educated, athletic, white, privileged and pampered, they have not reached their full potential.  Here's hoping they keep trying for the sake of the blog gods and us.

Hey, Bro! Can You Spare A Bitcoin? Digital Currency For The Homeless And Unemployed.

We have discussed bitcoins several times before, see here and here, for example.  We exulted in the fact that the Winklevoss twins of Facebook fame are starting a bitcoin investment vehicle.  We also talked about how the regulators were taking a bigger interest in how bitcoins were use or abused.

Now a Wired article shows how the unemployed and homeless are using sites such as Bitcoin Get, Bitcoin Tapper and Coinbase to get paid bitcoins for watching videos and tapping an icon, each a technique for driving traffic on the internet.  The Wired article then quotes some of the homeless as preferring bitcoins because it is much harder to steal (at least from them) and they can convert it to money or prepaid cards using their computers or smart phones.  Now, I can hear conservative heads exploding all over at the thought of homeless, unemployed people with computers and smart phones particularly if they are getting food stamps or other assistance.  Be that as it may, engaging in this activity provides them some small bit of assistance to help feed them.  That can't be all that evil.

Some day, you may be approached (or approach somebody) on the street and asked for a handout.  They then offer the internet address for their bitcoin wallet and you send them some from your smartphone.  Panhandling in the digital age.

Court Holds That Non-Present Texter Could Be Liable Along with Textee In An Automobile Accident.

In another case that involves a collision (in this instance a most unfortunate pun) between technology and law, a New Jersey court has held that a person sending a text to a driver, with sufficient knowledge that the driver would observe the text while driving, might be held liable for the driver's negligence when the driver does observe the text and because of the distraction, has a collision.

Oh my!  Consider this possibility.  You are ensconced in your office in San Francisco.  You are engaged in negotiations with a business rival in New Jersey.  Your New Jersey rival is in transit between Newark and Atlantic City and you know this because you had a telephone call with her earlier and she indicated that she would be driving but would appreciate a text if you had any further information or a change in your offer.  You update your offer and text it to her when you know she is in transit.  She has an automobile accident and either because of your crappy offer or her injuries, the deal does not go further.  A month or so later, you receive a demand letter or a complaint and summons from the lawyer of the other participants in the wreck, alleging that your sending of the text makes you liable for his client's injuries.  You say  WTF?

Far fetched, you say.  Yes.  Impossible? No, consider the decision recently in Kubert v. Best.  There, the court held: "The sender of a text message from a remote location can be liable under the common law if an accident is caused because the driver was distracted by the texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted."

In this case, Mr. Best was texting with Shannon and had been doing so off and on for most of the day.  During his texting, he crossed the center line and hit Mr. and Mrs. Kubert on their motorcycle and caused each of them to lose their left leg.  Very dreadful!  The Kuberts included Shannon in their complaint.  The court found that in this case Shannon was not liable because the plaintiffs had not proven that Shannon knew that Kyle (Mr. Best) would view the text while driving and consequently be distracted.  So, not liable in this case but the court held that if such knowledge and distraction had been proven, the court could have held Shannon liable for the Kuberts' injuries.

This raises several questions that are not answered in the opinion, e.g. (1) Does there have to be a special relationship between the texters?  Would liability be more likely if they were romantically involved or does the business relationship described above suffice?; (2)  Would the fact that the text came from a state that did not prohibit texting while driving have any impact?  Would it even matter if the state in which the accident occurred did not prohibit testing while driving?; (3) Would the automobile liability insurance of the non-present texter cover her negligence as if she had been present?; (4) What if the non-present texter is not an adult?; (5)  In states where parents are responsible for a minor's negligence if they sign to allow them to get a driver's license, would the parents be responsible for the texter's remote negligence?; (6) Could this be applied to other distractions like cell phone calls, the waving of signs on the side of the road for advertisement or in protest or the flashing of parts of the body.  Should cheer leader car washs worry? and (7) Have I given way too much thought to this?

Plaintiff's attorneys will now begin to check the defendant's cell phone and sue anybody that texted or messaged in close proximity to the time of the accident.  Maybe there should be an app for that.