Quantum Meruit

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Month: January, 2012

Megaupload: Not That Innocent

Let’s be clear, here. Despite Anonymous’s protestations to the contrary, Megaupload did not exist primarily as a way to let users share large files. That was a sham that Megaupload perpetuated for its own P.R. Quite to the contrary, Megaupload existed primarily to pirate copyrighted content. To the degree that intellectual property exists, and can be afforded copyright protection, and to the degree that such property can be “stolen,” Megaupload did it.

Boy, did they do it.

The ignorance defense is unavailing, and Anonymous’s reliance on that defense is either ignorant or dishonest. Not only did Megaupload know that its users were uploading copyrighted material, they encouraged “premium” (paid) users to upload copyrighted material, making millions of dollars in the process. They also invented a somewhat-sophisticated system for dodging copyright-takedown requests, enabling them to claim they were complying with those requests, but really not doing any such thing. And why would they? It would have cut into their bottom line.

I’ve also heard the fair use doctrine thrown around. It exceeds the boundaries of reason to believe that Megaupload was engaging in fair use while it was making money from infringement and dealing in the distribution of copyrighted works in their entirety for none of the typical fair use reasons (academia, satire, journalism, etc.).

Bottom line: Megaupload is dead, and people who have been availing themselves of pirated content for years are upset that they’ll have to go somewhere else or start paying for it. There are no SOPA or PIPA implications, here. Anonymous’s online temper tantrum actually works against the legitimate concerns that the Internet has against SOPA and PIPA. It only enables the Chris Dodds of the world to say, “See? It was always about facilitating piracy, not free speech or due process, just like we always said!”

Small Businesses Dislike Citizens United

The Small Business Coalition, which represents the interests of small businesses, seems to have a problem with Citizens United. Unlike the U.S. Chamber of Commerce, which represents giant, multinational, Fortune 500 companies, the SBC represents those businesses that make up the vast, vast majority of corporate entities in the United States.

Libertarianism’s Amorality

Libertarianism, says Jeffrey Sachs, is beguiling in its amorality:

By taking an extreme view — that liberty alone is to be defended among all of society’s values — libertarians reach extreme conclusions. Suppose a rich man has a surfeit of food and a poor man living next door is starving to death. The libertarian says that the government has no moral right or political claim to tax the rich person in order to save the poor person. Perhaps the rich person should be generous and give charity to the neighbor, the libertarian might say (or might not), but there is nothing that the government should do. The moral value of saving the poor person’s life simply does not register when compared with the liberty of the rich person.

The Libertarian point of view reduces all people to numbers, and civilization to a spreadsheet. The correct outcome — indeed, the morally correct outcome — is no more than the solution to an equation. The only time people are humanized is when they can be used as caricatures. Take the Libertarian holy-books, Atlas Shrugged and The Fountainhead. In the latter, Elsworth Toohey is a comic villain a la James Bond who explicates his plans for reducing the world to a shambling mess of mediocrity. Mwahahaha! Taxes and regulations are put in place not to support those who do not prosper, or to ensure fair dealing, but out of explicit jealousy toward innovators and entrepreneurs. The rest of us are so upset that we can’t come up with good ideas that we use government to ensure that entrepreneurs can’t flaunt their abilities in our faces. (Then again, I wonder to what degree Libertarians actually believe this. Hopefully not many.)

Back in reality, rules are to be enforced even when the outcome of that enforcement defeats the purpose of having those rules in the first place. Libertarianism also ignores behind-the-scenes forces that generate inequality. It’s easy to argue that the disadvantaged should not be afforded help when you are unaware of all the advantages you were afforded. “Work and ye shall prosper” is a great mantra, provided you’re prosperous already or the beneficiary of policies that ensure your prosperity. This is not to suggest that people shouldn’t work in order to prosper. It is, however, to suggest that work is not the only factor that attends prosperity.

Terrorism: It’s Not Just for Brown People Anymore

As it turns out, white people can be terrorists, too.

Tom Junod, “Counter-Terrorism is Getting Complicated,” Esquire, Feb. 2012.

Ten Speciously ‘Ridiculous’ Lawsuits

The 10 Most Ridiculous Lawsuits of 2011. The point of this list, I guess, is to show us that the legal system is wacky-screwed up, and doesn’t there need to be reform? Sponsored by the U.S. Chamber of Commerce, which has really no beef at all with large corporations suing smaller corporations or individuals. It’s little guys suing big companies — the Chamber of Commerce’s constituency — that they really hate.

Here’s how I think these lawsuits actually turned out or will actually turn out. (In some cases, the story doesn’t report that these cases were actually dismissed or settled.)

Kidnapper sues couple for not helping him evade the police? This will be dismissed; no cause of action. “Oral contract”? Give me a break.

Man illegally brings gun into a bar, gets injured, and then sues the bar for not searching him for weapons. This one actually was dismissed. The plaintiff filed in federal court, which naturally tossed the thing out. Also, he was filing pro se. The Chamber of Commerce didn’t mention either fact.

Young adults sue mother for playing favorites and sending cards without gifts. Dismissed.

Woman sues for $5 million on 80-cent refund. What you aren’t told is that she’s seeking class action status and was filed by her father, who is a lawyer. This one will get dismissed hard. “Unjust enrichment”? On 80 cents?You can smell the frivolousness from here.

Mom files suit against exclusive preschool over child’s future job prospects. Fraud, maybe? This one actually has a chance of going somewhere. Or probably settling. All the mom wants is the $19,000 in tuition back. Class action status? That’s not happening.

Man suing for age discrimination says his judge is too old. Actually, what happened was that the 88-year-old judge dismissed the plaintiff’s case. The plaintiff re-filed and got the same judge again. The 60-year-old plaintiff was alleging age discrimination in a contest. This wasn’t a job or anything. I think this story is funny just for the irony: guy who says he was discriminated against because he’s too old passes discrimination on to a judge who he claims is to old. (Wouldn’t an older judge be more likely to side with an alleged victim of age discrimination?) I predict: dismissed. Again.

290-pound man sues White Castle for not renovating the restaurant to make booths that accomodate his size. ADA compliance? Maybe not; White Castle claims that they installed chairs, and couldn’t he sit in a chair? This one sounds like it will be dismissed.

And so on. Funny how the Chamber of Commerce didn’t mention AT&T v. Concepcion. You know, the one that locks mandatory arbitration clauses into a contract even if state law forbids it and the contract is unconscionable? You know, a horrendously anti-consumer, pro-corporation decision? Man, I wonder why they didn’t talk about that one.

I understand that even having to respond to an obviously frivolous lawsuit takes time and money. But this is another case of taking an exception and blowing it up to the point where it looks like the rule. The Chamber of Commerce’s ongoing crusade for “tort reform” — which means making it more difficult for any person to file lawsuits — ultimately cuts in their favor. For every baseless 80-cent refund claim, there’s an Escola out there or a McDonald’s hot-coffee case (the woman had third-degree burns in her crotch, for crying out loud). Preventing consumers from filing lawsuits against corporations would be a sure-fire way to encourage corporate corner-cutting.