wikipedia, legal authority and facts

I was in the middle of writing yet another half-finished post (this one on Groupon, in case you were wondering) when I was distracted by a tweet from Barry Sookman on how a court determined that Wikipedia is not a legal authority in US courts, which then pointed to a brief blog entry written by Peter Vogels. In it, he concludes with this statement:

Even though the Smithsonian Institution is now teaming up with Wikipedia that does not validate Wikipedia postings for the Courts. As time moves on Wikipedia may be a reliable source for the Courts, but when is still unpredictable.

which I interpreted as disappointment with the court’s ruling, at least as far as Wikipedia goes. This piqued my interest a bit, so I took at look at the order (PDF – which Mr. Vogels was kind enough to link to in his entry). The operative paragraph was set out in the following footnote in the order:

4The court notes here that defense counsel appears to have cobbled much of his statementof the law governing ineffective assistance of counsel claims by cutting and pasting, without citation, from the Wikipedia web site. Compare Supplemental to Motion for New Trial (DN 199)at 18–19 with (last visited Feb. 9, 2011).The court reminds counsel that such cutting and pasting, without attribution, is plagiarism. Thecourt also brings to counsel’s attention Rule 8.4 of the Kentucky Rules of Professional Conduct, which states that it is professional misconduct for an attorney to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” SCR 3.130(c). See also In re Burghoff, 374 B.R.681 (Bankr. N.D. Iowa 2007) (holding that counsel’s plagiarism violated identical provision of Iowa Rules of Professional Conduct). Finally, the court reminds counsel that Wikipedia is not an acceptable source of legal authority in the United States District Courts.

This, in turn, was a footnote to the following sentence in the order:

The defendant claims that she must be granted a new trial because the representation she received was so deficient as to violate the Sixth Amendment to the United States Constitution.4

I’m not sure the statement of the court above  is necessarily as unfortunate as it sounds. Legal authority is usually used to describe “reporters” – specific publications that publish court decisions. Some are “official”, as in they are approved in some way by the courts, while others, which are still accepted by the courts, are not. These reporters, as far as I am aware, take great care to ensure that decisions are published completely and accurately. They are typically well known by lawyers and judges, so that anyone given a reference to a particular case using a particular citation will be assured that it will be identical, down to the page, of anyone else looking at that citation. For example, R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 will allow any lawyer or judge to look up the case described in a specific reporter.

If I’m interpreting the above correctly, the judge seems to be suggesting that the lawyer in question basically tried to rip-off arguments in another case without acknowledging that they came from another case (or rather the Wikipedia entry for the case) – at least for all of the footnote other than the last sentence.

That last sentence, however, I think speaks only to legal authority in the sense I’ve described above. Or at least I hope it does, because that would be a sensible thing to say – after all, the full text of decisions are not published on Wikipedia but rather summaries which are editable by users. And when it comes to citing past decisions as the basis for coming to a new judicial decision, it is probably important to have some degree of reliability, immutability and consistency for your sources. Or perhaps stated simply, lawyers shouldn’t be providing a link to Wikipedia when they’re citing a case as precedent – they should be citing authoritative reporters.

This should be distinguished, I think, from more general use of Wikipedia by the courts to refer to factual matters, which an article in the New York Times summarized the current perspectives quite well. The article in particular noted a case where a US court had rejected references to Wikipedia:

When a court-appointed special master last year rejected the claim of an Alabama couple that their daughter had suffered seizures after a vaccination, she explained her decision in part by referring to material from articles in Wikipedia, the collaborative online encyclopedia.

The reaction from the court above her, the United States Court of Federal Claims, was direct: the materials “culled from the Internet do not — at least on their face — meet” standards of reliability. The court reversed her decision.

Oddly, to cite the “pervasive, and for our purposes, disturbing series of disclaimers” concerning the site’s accuracy, the same Court of Federal Claims relied on an article called “Researching With Wikipedia” found — where else? — on Wikipedia. (The family has reached a settlement, their lawyer said.)

The article does go on, however, to identify a number of instances where Wikipedia had been accepted by other courts, sometimes for rather important facts, which has been criticized by some:

In a recent letter to The New York Law Journal, Kenneth H. Ryesky, a tax lawyer who teaches at Queens College and Yeshiva University, took exception to the practice, writing that “citation of an inherently unstable source such as Wikipedia can undermine the foundation not only of the judicial opinion in which Wikipedia is cited, but of the future briefs and judicial opinions which in turn use that judicial opinion as authority.”

while others have been less harsh:

For now, Professor Gillers said, Wikipedia is best used for “soft facts” that are not central to the reasoning of a decision. All of which leads to the question, if a fact isn’t central to a judge’s ruling, why include it?

“Because you want your opinion to be readable,” said Professor Gillers. “You want to apply context. Judges will try to set the stage. There are background facts. You don’t have to include them. They are not determinitive. But they help the reader appreciate the context.”

I guess my point in all of the above is that I’d be inclined to agree that Wikipedia shouldn’t be used at all to cite legal authority (assuming of course I’m properly interpreting what the court meant), without of course discounting the desirability of perhaps replacing (or supplementing) the rather antiquated, primarily paper-oriented system of legal authority with more modern, internet-accessible means of publication. Conversely, I would think that references to Wikipedia for factual matters should perhaps be a bit more flexible, and I don’t think this particular order  rules that possibility out.

how not to use social media

It never ceases to amaze me how some folks manage to mess things up when it comes to social media. I could perhaps understand it a few years ago, when Facebook and LinkedIn weren’t all that popular just yet, and the former was more or less limited to students. But these days, I would have thought that people would know better. And to some extent they do. For example, as compared to just a few years ago, most people I see on Facebook have taken the effort to turn on at least some of the privacy settings, which hasn’t always been the case.

In any event, apparently we now have another first – the first person to have been convicted for a tweet. The prize goes to Mr. Paul Chambers, for this lovely tweet: “Robin Hood airport is closed. You’ve got a week and a bit to get your s**t together, otherwise I’m blowing the airport sky high!”

He was convicted of sending a menacing electronic communication. Fortunately for him no jail time was involved, though he was fined and apparently also lost his job as a result of the prosecution.

Social media, privacy, personal information and one’s communications through them are, collectively, a very complex topic. I’m sure that if you wanted to, you could spend a whole day (or longer) teaching people how to navigate Facebook’s privacy settings. Or LinkedIn’s. That being said, I usually try to keep my advice on using social media very simple: Before you post, tweet, blog or send, imagine what would happen if whatever it is you’re sending out will appear on the front page of the New York Times. Would you be comfortable with that? If not, then perhaps keep it to yourself. Or share it with close friends or colleagues over a coffee or a beer.

I imagine this might be of a bit of an oversimplification, and perhaps even rather obvious. Also, if someone already lacks any sense of judgement, it certainly won’t help (then again in that case nothing likely will). And it certainly won’t help you if you’re, say, someone with unusual predilections who can use only social media as an outlet. All that said, I find it to relatively good rule of thumb. Also a lot quicker than taking a couple of hours each time Facebook, once again, adds another 30 settings to its privacy controls.

the (not so) long arm of the tax authorities

The recent case involving the Canada Revenue Agency and eBay took an interesting (and perhaps somewhat ironic) twist on access to information. Without getting into too much detail, the essence of the issue was this: CRA wanted eBay Canada to cough up information on folks known as “Power Sellers” – those that sell a lot of stuff on eBay. Presumably so that CRA could helpfully remind those folks of their tax obligations in the unfortunate event they somehow forgot to report all the income they made in Canada by selling on eBay.

eBay Canada’s response was that the legal entity in Canada did not in fact own that information and it was also not stored in Canada. Rather, the information was owned by some of its affiliates and stored in the US, outside of Canadian jurisdiction. So they couldn’t provide the information, they asserted.

Unfortunately (for eBay) it came out that eBay Canada was able to access the information even though it didn’t own the data. In fact, it had to be able to access that information in order to run its business. So the court ruled in favour of the CRA, with this rather cogent analysis:

The issue as to the reach of section 231.2 when information, though stored electronically outside Canada, is available to and used by those in Canada, must be approached from the point of view of the realities of today’s world. Such information cannot truly be said to “reside” only in one place or be “owned” by only one person. The reality is that the information is readily and instantaneously available to those within the group of eBay entities in a variety of places. It is irrelevant where the electronically-stored information is located or who as among those entities, if any, by agreement or otherwise asserts “ownership” of the information. It is “both here and there” to use the words of Justice Binnie in Society of Composers, Authors and Music Publishers of Canada v. Canadian Ass’n of Internet Providers, [2004] 2 S.C.R. 427 at paragraph 59. It is instructive to review his reasons, for the Court, at paragraphs 57 to 63 in dealing with whether jurisdiction may be exercised in Canada respecting certain Internet communications, including an important reference to Libman v. The Queen, [1985] 2 SCR 178 and the concept of a “real and substantial link”.

The implications in this case are relatively clear. In other cases, it may become less so. For example, what happens with this concept when someone who once stored their docs on their local hard drive starts using Google Docs, only to find out that the authorities in whatever far-flung jurisdiction have ordered an affiliate of Google to disclose that information? Or in the near future when things like Prism get to a point where users aren’t even sure whether their data is here, there, or elsewhere. Interesting times, indeed.

a rose by any other name…

or, a study on the idea/expression dichotomy in copyright law as illustrated through flatulent dolls. The interesting decision in JCW Investments v. Novelty, Inc. centers around how copyright can inhere in toy farting dolls:

Somewhat to our surprise, it turns out that there is a niche market for farting dolls, and it is quite lucrative. Tekky Toys, an Illinois corporation, designs and sells a whole line of them. Fred was just the beginning. Fred’s creators, Jamie Wirt and Geoff Bevington, began working on Fred in 1997, and had a finished doll in 1999. They applied for a copyright registration on Fred as a “plush toy with sound,” and received a certificate of copyright on February 5, 2001; later, they assigned the certificate to Tekky. In the meantime, Tekky sent out its first Fred dolls to distributors in 1999. By the time this case arose, in addition to Fred, Tekky’s line of farting plush toys had expanded to Pull My Finger® Frankie (Fred’s blonde, motorcycle-riding cousin), Santa, Freddy Jr., Count Fartula (purple, like the Count on Sesame Street), and Fat Bastard (character licensed from New Line Cinema’s“Austin Powers” movies), among others. By March 2004, Tekky had sold more than 400,000 farting dolls.

400,000! Anyway, on to the actual law part of it. Basically, another company, Novelty, came along and developed a similar doll and the court found them offside:

It is not the idea of a farting, crude man that is protected, but this particular embodiment of that concept. Novelty could have created another plush doll of a middle-aged farting man that would seem nothing like Fred. He could, for example, have a blond mullet and wear flannel, have a nose that is drawn on rather than protruding substantially from the rest of the head, be standing rather than ensconced in an arm-chair, and be wearing shorts rather than blue pants.

Well. Good to know that one can’t own the idea of a farting, crude man – only the particular expression of a farting, crude man.

There was of course also the trademark aspect to it:

The jury found Novelty liable for trademark infringement because Novelty used the words “Pull My Finger” to sell its farting Santa dolls, and this use infringed Novelty’s mark for those words as related to plush dolls.

There you have it. “Pull My Finger” is a trademark.

Wikiality – Part III

Bit of an elaboration on a previous post on the use of Wikipedia in judgements. I cited part of a New York Times article, which had in turn quoted from a letter to the editor from Professor Kenneth Ryesky. The portion cited by the NYT article suggested that Ryesky was quite opposed to the idea, which wasn’t really the case. He was kind enough to exchange some thoughts via e-mail:

In his New York Times article of 29 January 2007, Noam Cohen quoted a sentence (the last sentence) from my Letter to the Editor published in the New York Law Journal on 18 January 2007. You obviously read Mr. Cohen’s article, but it is not clear whether you read the original Letter to the Editor from which the sentence was quoted.

Which exemplifies the point that Wikipedia, for all of its usefulness, is not a primary source of information, and therefore should be used with great care in the judicial process, just as Mr. Cohen’s article was not a primary source of information.

Contrary to the impression you may have gotten from Mr. Cohen’s New York Times article of 29 January, I am not per se against the use of Wikipedia. For the record, I myself have occasion to make use of it in my research (though I almost always go and find the primary sources to which Wikipedia directs me), and find it to be a valuable tool. But in research, as in any other activity, one must use the appropriate tool for the job; using a sledge hammer to tighten a little screw on the motherboard of my computer just won’t work.

Wikipedia and its equivalents present challenges to the legal system. I am quite confident that, after some trial and error, the legal system will acclimate itself to Wikipedia, just as it has to other text and information media innovations over the past quarter-century.

Needless to say, quite a different tone than the excerpt in the NYT article. Thanks for the clarification, Professor Ryesky.

Kinderstart v. Google

Speaking of litigation, here’s another one, albeit rather old news. The short version: Kinderstart, a web startup focused on children, decides to sue Google because its PageRank drops when Google decides to fine tune its PageRank algorithms. PageRank, btw, is what determines where your site shows up in search results when someone searches on key terms in Google. So when your PageRank drops, less people see the link to your site, less people find your site, and therefore your traffic and revenue go down.

Because of this, they sued Google for damages and also sought an injunction to require Google to reveal their proprietary PageRank algorithms (which of course Google closely guards as a trade secret.

As with the Culligan case, yes, well written decision, etc. etc., and I understand the logic and all that, but there’s a little part of me that wishes that the court could have written a judgement like this:

Kinderstart, this is Google. Google is a separate business from yours. They don’t owe you a living. So, in response to your claim, the answer is no. Now go away.

Tip o’ the hat to the Stella Awards for mentioning this in their listserv. Highly recommended for their take on US litigation.