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Lori Drew Case Goes to the Jury:
People Magazine has the scoop, with some coverage of the closing arguments. UPDATE: More on the closing arguments from Reuters, the New York Times, and the Los Angeles Times.
Mike& (mail):
Hard to say from excerpts but.......
"The scheme went beyond a simple prank or a mere insult," Krause told the panel. "The way she did this shows the extreme nature of the scheme, and that it was designed to prey on Megan's weaknesses."


What relevance does that have with the legal issue, namely whether Lori Drew violated MySpace's rights?

And Oh My Zod, did the defense lawyer really say this: "Megan dished it out the same way that she got it," Steward said. "There was no cyber-bullying in any way you want to describe that term."

WTF? Does he really think that will move hearts and minds?
11.24.2008 10:58pm
Jake LaRow (mail):
<i>People</i> Magazine huh? Last publication I would have thought to be cited!
11.24.2008 11:02pm
Jake LaRow (mail):
<i>People</i>

Ok. so is it just me or are others having their preview different from what actually posts?
11.24.2008 11:04pm
JB:
I am struck by the mismatch between the charges and the arguments. Drew is being prosecuted and defended for the charge of harassment with the intent to cause emotional harm, but she is charged with defrauding Myspace.

The entire thing is a travesty.
11.24.2008 11:16pm
Mike& (mail):
The entire thing is a travesty.

Agreed. I was a fully supporter of e-shaming Lori Drew, and published her personal information online. I hope her life is miserable through legal means. People have the right to not befriend her, or hire her, or associate with her.

But she is innocent under the law. I am reminded of the famous colloquy from A Man for All Seasons:
Wife: Arrest him!
More: For what?
Wife: He's dangerous!
Roper: For all we know he's a spy!
Daughter: Father, that man's bad!
More: There's no law against that!
Roper: There is, God's law!
More: Then let God arrest him!
Wife: While you talk he's gone!
More: And go he should, if he were the Devil himself, until he broke the law!
Roper: So, now you give the Devil the benefit of law!
More: Yes! What would you do? Cut a great road through the law to get after the Devil?
Roper: Yes, I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat?
This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down (and you're just the man to do it!), do you really think you could stand upright in the winds that would blow then?
Yes, I'd give the Devil benefit of law, for my own safety's sake!
11.24.2008 11:31pm
Alligator:

Lori Drew, who is accused of posing as a teen boy on the MySpace social networking website to tease and humiliate 13-year-old Megan Meier, who later committed suicide.


Interesting how Reuters gets it right with the suicide separated from the actual charge.

I also thought the quotations from the defense were strange, but it probably looks worse if emotional issues, however irrelevant to the actual charge, aren't addressed.
11.24.2008 11:51pm
man from mars:
Mike&, good point. Someone on another thread on the case here said this case was like a "parallel universe." That's the only explanation I can come up for some of this.

By the way, Reuter's quotes the defence attorney:
==
"When you look at the facts that you've heard and you listen to the elements of the law it doesn't fit," he told jurors. "And I submit to you it's like trying to take a size 11 foot and fit it into a size 6 shoe."
==
If this quote is accurate, do you think it will remind jurors of the O.J. Simpson trial in ways that will hurt the defense?

Most jurors, especially in that venue, likely believe O.J. Simpson was improperly acquitted. Two points raised in the defense closing argument in that trial, "If it doesn't fit you must acquit" and the glove not fitting, are likely to be familiar to jurors. So I think the metaphor is appropriate here, but risky.
11.24.2008 11:55pm
Fub:
man from mars wrote at 11.24.2008 11:55pm:
Most jurors, especially in that venue, likely believe O.J. Simpson was improperly acquitted. Two points raised in the defense closing argument in that trial, "If it doesn't fit you must acquit" and the glove not fitting, are likely to be familiar to jurors. So I think the metaphor is appropriate here, but risky.
Hmm. Maybe "If the facts and the law conflict, you must not convict."
11.25.2008 12:05am
Bill Poser (mail) (www):
The correct outcome of this case will be acquittal followed by Ms. Drew being struck by lightning as she leaves the courthouse.
11.25.2008 12:08am
Elliot123 (mail):
I'd say this is a perfect example of why the prosecutor's office should have to pay defense costs if there is an acquital.
11.25.2008 12:19am
Dave Hardy (mail) (www):
It sounds like the case and the law being argued are far out of alignment, A convictions may invite reversal.

That said, if there is a law in alignment with the offense, were I the judge, I'd be trying to compute the absolute max. The thought of this (sundry words deleted) being locked in a small room eating slop for a long time is a comforting one.

Matter might be easier if the prosecutor stopped to think of the above two.
11.25.2008 12:40am
Jenny (mail):
Actually, the Myspace TOS that she's accused of violating state:
"Eligibility. Use of and Membership in the MySpace Services is void where prohibited. By using the MySpace Services, you represent and warrant that (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 14 years of age or older; and (d) your use of the MySpace Services does not violate any applicable law or regulation. Your profile may be deleted and your Membership may be terminated without warning, if we believe that you are under 14 years of age."

Obviously, the information was NOT truthful and accurate.

And:
"Content/Activity Prohibited. The following is a partial list of the kind of Content that is illegal or prohibited to post on or through the MySpace Services. MySpace.com reserves the right to investigate and take appropriate legal action against anyone who, in MySpace.com's sole discretion, violates this provision, including without limitation, removing the offending communication from the MySpace Services and terminating the Membership of such violators. Prohibited Content includes, but is not limited to Content that, in the sole discretion of MySpace.com:

2. harasses or advocates harassment of another person;

5. solicits personal information from anyone under 18;"

I'd say that she violated those, also.

The reason that the quote regarding this scheme being designed to prey on Megan Meier ties into the whole, "harrassment" thing. They are trying to show that she went to great lengths to plan this course of action to harass this girl via Myspace, thus violating the TOS.
11.25.2008 1:03am
whit:

I'd say this is a perfect example of why the prosecutor's office should have to pay defense costs if there is an acquital


oj could use the money... in prison
11.25.2008 1:03am
David Schwartz (mail):
There's an interesting parallel between this case and the GPL (open source license) cases.

In this case, the question is whether using authorized access for an unapproved purpose is exceeding the authorization. The correct, IMO, position is that you do not exceed your authorization if you use your authorization for some other purpose than intended. You exceed your authorization if you access something you are not authorized to access. Lori Drew did not do that. If she did, then private contracts would be able to re-write criminal law, making a ToS violation a crime.

In the GPL cases, the question was whether violating the GPL was a violation of copyright law or a breach of the license agreement. The correct, IMO, position is again that if you have a license to do something, you cannot breach the copyright law by doing it. You can, of course, breach the license.

In both cases, those arguing against the positions I consider correct are trying to do the same thing -- allow private parties to make their contracts have the force of criminal law. At least in the GPL case, they only get treble damages and a presumption of irreparable harm. In this case, they get to put you in jail for uploading "bad stuff" to YouTube with intent to make someone feel bad.

I think this case just goes to show how serious the safeties are that these cases threaten. Private contracts are not written with the clarity of criminal law, and it is important that they not be given that kind of force.
11.25.2008 1:16am
einhverfr (mail) (www):

The correct outcome of this case will be acquittal followed by Ms. Drew being struck by lightning as she leaves the courthouse.


No. The correct outcome will be a conviction followed by a dismissal on the basis that the conviction is not supported by the record of fact. Hopefully this will be appealed and the dismissal will be sustained (for the sake of establishing a stronger precedent).

An acquittal does not necessarily address the question of whether or not the law specifically addresses this sort of thing, and it could be used by the next court as a basis for siding with the prosecution in this sort of way.

If Lori Drew is guilty of what she is accused of doing then I can see no more fitting punishment than for her torment to be the cause of a strong ruling in favor of our civil liberties. She will have become infamous, yet will have paid us back with a positive legal precedent.
11.25.2008 1:29am
Bill Poser (mail) (www):
David Schwartz,

I think that your analogy fails because there have been no criminal prosecutions for violation of copyright in GPL cases. Indeed, proponents of the GPL all appear to be opposed to criminal sanctions for violation of copyright. The issue in GPL cases is whether the remedies available are the civil remedies for copyright infringement.

Also note that violation of the GPL is not, strictly speaking, a breach of contract since the GPL is a license and not a contract.
11.25.2008 2:30am
Frater Plotter:
In this case, the question is whether using authorized access for an unapproved purpose is exceeding the authorization. The correct, IMO, position is that you do not exceed your authorization if you use your authorization for some other purpose than intended. You exceed your authorization if you access something you are not authorized to access.

I find it surprising that you defend this by analogy to copyright licensing, since copyright has a long history of permitting a license to extend to only some uses and not others.

First off, copyright (like property rights) is a bundle of rights, and it is possible to license some but not others, with "all other rights reserved": to license publication but not adaptation, performance, or derivative works, for instance. What right is reserved? The right to seek justice if the licensee oversteps the bounds of the license by straying into unlicensed publication -- that is, into infringement.

Second, all manner of restrictive licenses are standard practice, such as an author licensing a work to a publisher for a period of time, or for print in only some media. If you license a work for me to publish in a single hardback printing and I come out with several editions of cheap paperbacks, I have broken the law. To print your work, copyright law requires that I have your permission; and I did not have it.

It is surely the case that many copyright violations by licensees overstepping their bounds (including in open-source cases) do not end in the prosecution of the violator for criminal infringement. But this is because it is usually in the author's interest to negotiate a profitable settlement from the infringer. It is surely not because the author's rights under copyright are signed away for all purposes by a license that extends only to some purposes, leaving him recourse only to contract.
11.25.2008 2:32am
David Schwartz (mail):
Bill Poser: You are correct that these are civil remedies and not criminal. But they are extraordinary civil remedies, including a presumption of irreparable harm, entitlement to statutory damages, and so on.

As for the license/contract difference, it's a distinction without a difference. In both cases, you are given something that has attached terms that you are expected to comply with if you use the thing given. I don't see how it would change anything to argue that MySpace's ToS is a license rather than a contract.

Frater Plotter: To your first argument, I agree. If a license permits, say, distribution but not the creation of derivative works, then creating a derivative work is a violation of copyright law. In fact, that's a great analogy. Creating a derivative work is like exceeding the scope of the authorization. Failing to pay when you distribute is authorized, but not complying with the contract/license.

To your second point, well that's my whole point. There is a very similar distinction of what's a breach of a separate law and what's a mere breach of the agreement. Breaches of the agreement get ordinary remedies. Exceeding the scope of the agreement gets extraordinary remedies.
11.25.2008 4:35am
Nick42 (mail):
Is it possible to obtain a copy of the the trial transcripts?
11.25.2008 9:47am
Patent Lawyer:
David Schwartz-

You perfectly explained why the license/contract distinction matters in the previous paragraph--because copyright law has all of these extraordinary statutory damages provisions, and contract law doesn't. In general, if you breach a contract, the court will order compensatory damages, no punitive damages, and almost never an injunction. If you infringe a registered copyright, the court will order at least compensatory and possibly statutory damages, possibly punitive damages if willfulness is shown, and almost always an injunction. Big difference in the defendant's risk.

I think your analysis of the issue is right--violations of the terms of the license are breaches of contract, going outside the scope of the license is copyright infringement.
11.25.2008 9:52am
Patent Lawyer:
Gah, should be "license/copyright distinction".
11.25.2008 9:52am
Curt Fischer:
Jenny, Yes, from what you have written, it seems very likely that Drew violated the TOS. But a criminal violation of the relevant statute apparently needs an intentional violation of the TOS.
11.25.2008 10:17am
David M. Nieporent (www):
In this case, the question is whether using authorized access for an unapproved purpose is exceeding the authorization. The correct, IMO, position is that you do not exceed your authorization if you use your authorization for some other purpose than intended. You exceed your authorization if you access something you are not authorized to access. Lori Drew did not do that. If she did, then private contracts would be able to re-write criminal law, making a ToS violation a crime.
While I agree with the majority of people in the world who consider this prosecution insane, I want to point out that private contracts can rewrite criminal law.

If you walk up to my car, hop into it, and drive away, you've just committed the crime of grand theft auto -- unless you've contracted to lease my car for the day, in which case, no crime at all.
11.25.2008 10:25am
David M. Nieporent (www):
No. The correct outcome will be a conviction followed by a dismissal on the basis that the conviction is not supported by the record of fact. Hopefully this will be appealed and the dismissal will be sustained (for the sake of establishing a stronger precedent).

An acquittal does not necessarily address the question of whether or not the law specifically addresses this sort of thing, and it could be used by the next court as a basis for siding with the prosecution in this sort of way.
As much as we all hate Drew, and as much as that would be a good legal precedent, the government's job is not to make bad, but non-criminal, people suffer for their misdeeds.

Anyway, you both forget the last step in the correct outcome: ethics sanctions on prosecutors for bringing an unjust and frivolous case solely for the sake of their own political careers.
11.25.2008 10:27am
Bill Poser (mail) (www):
David Schwartz and Patent Lawyer,

While it is true that copyright law provides for statutory damages etc., to my knowledge these remedies have not been requested in GPL cases. The remedy requested in GPL cases has always been specific performance, has it not?

David Nieporent,

Yes, ethics sanctions against the prosecutors are in order. It is hard to believe that they didn't know that they were over-reaching.
11.25.2008 11:57am
Portland (mail):
While we are talking about stretching the law to hurt people who offend us, I'd like to bring up the travesty of a case against the Holy Land Foundation:


nytimes.com/2008/11/25/us/25charity.html?ref=us


http://blogs.wsj.com/law/2008/11/06/
holy-land-foundation-case-is-lesson-to-lawyers-pare-down/

I'm not going to say much, as it's only tangentially related to the Drew case, but I wish some VCer would take it up. If the conviction from their second trial stands, the defendants will go to jail for the rest of their lives for providing food, education, and healthcare; the argument it that helping provide the Palestinians these things strengthened Hamas, which had a hand in running these charities.

Even if you agree with the decision, it's an interesting legal matter. How far will you carry guilty by association? If you serve sandwiches at an illegal rally and later a police officer is shot, have you provided material support to terrorism?
11.25.2008 12:03pm
Fub:
David M. Nieporent wrote 11.25.2008 10:27am:
Anyway, you both forget the last step in the correct outcome: ethics sanctions on prosecutors for bringing an unjust and frivolous case solely for the sake of their own political careers.
Exactly! And I'm amazed that so many who should know better have let their disgust at defendant's behavior blind them to the actual danger to society the prosecution's legal chicanery presents.

If, as the prosecutor has so far successfully argued, the law permits bootstrapping a crime from violation of a web host's TOS, then the door is open to criminal prosecutions for everything from mentioning a competitor's product to spelling poorly. The only limitation on criminal prosecutions will be the particular bias of some prosecutor.

Such law applied fully and forcefully in an election year might be interesting to watch (like disaster movies are interesting), but very dangerous to comment upon.
11.25.2008 12:06pm
einhverfr (mail) (www):
David Schwartz:

I went to write a post about how you were wrong and ended up agreeing with you. Bear in mind I make my living writing software under the GPL v2 (won't touch v3 with a ten foot pole, but that is another matter)-- I am a software engineer, not a lawyer. The key issue in the GPL cases is whether civil infringement claims can result from ignoring the GPL copyright license. We haven't seen a case yet asking for criminal proceedings against those who violate the GPL. I suspect that this is the only major area where there is a difference.

This would be somewhat similar to the civil cases which have arisen from 18 USC 1030 which have held that telling someone not to access your resources can lead to civil claims under this title. These have often been held as valid. The question then becomes whether these sorts of civil issues regarding contracts can have the force of criminal law, particularly when those are adherence contracts (as I would argue the GPL is, in the same way terms of service are), though I suspect there may be cases in both areas where the contract has the opportunity for negotiated exception and that would of course be different.

Typically GPL violation cases tend to seek injunctive relief against the violator-- i.e. usually asking for a court order to get the new code released under the GPL. Of course this may not always be possible (for example, if the new code also is tightly bound to code licensed from a third party, GPL compliance may not be within the violator's power) so statutory damages might be sought as an alternative along with an injunction to stop distributing violating works.

I think the key issue here though is that this case represents sort of the absurd extreme that the GPL issue could grow into. I personally cannot imagine any case where I would see criminal copyright infringement charges against GPL violators as helpful. But perhaps you are right to warn of the danger of this sort of thing. We will see.
11.25.2008 5:03pm
David Schwartz (mail):
I wonder if there is a parallel we could draw to the issue another commentator raised. It would seem that there probably already are a bunch of cases where someone had a lease, loan, or rental agreement for a vehicle, violated the terms of that agreement, and there was an issue of whether that constituted a crime or a mere breach of the agreement.

This would parallel well to both the Lori Drew case and the GPL cases. I would assume that if there is such a law, it would have developed safeguards so that every trivial violation of a rental agreement isn't joyriding.

And I will freely admit that there are cases that are close to the borderline or that are hard. But that doesn't change the fact that the Lori Drew case is easy -- ToS terms like the ones at issue simply cannot have the force of criminal law or we live in bizarro world.
11.25.2008 5:10pm
einhverfr (mail) (www):
Just a few differences though in opinion with Mr Schwartz:

In the GPL cases, the question was whether violating the GPL was a violation of copyright law or a breach of the license agreement. The correct, IMO, position is again that if you have a license to do something, you cannot breach the copyright law by doing it. You can, of course, breach the license.


First you are correct in your first statement. However, courts have recently held that open source licenses can autoterminate on violation meaning that after that point, copyright infringement is helpful.

Think of it this way. Suppose I give you permission to enter on my property provided that you don't disturb my gardens, at which point, I make it clear that permission is rescinded. If you come over and disturb my gardens, perhaps I can go after you only on contract grounds, but if you later enter again, you no longer have permission to be there and that might be trespassing.

Under the GPL, this permission terminates the moment you make the first violating copy, meaning that subsequent copies made are violations of the owner's copyrights, not merely the license.

I think though one has a few problems with applying this to criminal copyright infringement-- the same vagueness problem that is present here. For example, if you read the GPL v3, does it violate the license to include software licensed under the BSD license? Everyone I have talked to says no, but the various lawyers I have had this conversation with from the Software Freedom Law Center can't agree on *why* and the differences are enough to make me worried-- the disagreement here is relatively technical and has to do with what the BSD and GPL licenses allow and require-- does the GPL v3 require changing the license of included code to match as Eben Moglen argues and does the BSD license allow this?

If it is later determined that this is a violation of the license, does that make works which do this suddenly criminal despite the fact that this was not crystal clear from the beginning? Even though this is current common practice?

On the GPL v2 we have another interesting question: does use of a software library mean aggregation (i.e. a collected or compiled work) or derivation (a derivative work)? This is a key question because it can make the difference between the inclusion of closed source libraries as legal or not.

Having said this, there are far fewer vagueness problems in the GPL cases than there are regarding terms of service and criminal sanctions for violating them. At least I can be relatively sure that the GPL v2 hasn't changed since the last time I read it and that every program that claims to be licensed under it uses the same terms. Since terms of service can be changed without notice, that is a very different perspective regarding due notice requirements.
11.25.2008 5:18pm
David Schwartz (mail):
einhverfr: I don't know where I stand on those kinds of issues yet, precisely because they are difficult border issues. But the Lori Drew case shows where we find up if we forget that we need these kinds of borders.
11.25.2008 5:43pm