Year: 2007

There’s an odd thing I noticed whenever the discussion gets around to laws or issues even remotely associated with the law. Inevitably, someone or more than one someones will give an opinion, and immediately follow the opinion with the acronym: IANAL. I Am Not A Lawyer.

I even use this myself whenever I talk about arbitration, copyright, or anything along these lines. It makes no sense, though, to use this term.

We give opinions on politics, but we don’t write IANAP (I Am Not A Politician). We also don’t specifically highlight our lack of professional association when discussing photography (IANAPP); cooking (IANAC); finances (IANAA); journalism (IANAJ); squid (IANAMB); or technology (IANAG). Especially technology–mention anything on technology, and everyone is an expert, everyone has an opinion.

For some reason, though, perhaps we’re intimidated by law or lawyers, when we give an opinion on law, legal decisions, legal issues, or anything even remotely associated with the law, normally bold and opinionated people are overwhelmed with a strong urg to self-deprecate: IANAL.

Some would say we use the term to ensure that people don’t mistake us for lawyers, and assume we know more than we do. Here’s a clue: How you can tell who is or is not a lawyer in a discussion thread? The people offering legal advice are not lawyers. The people going, “Wow. Man, that sucks. You should get a lawyer”, are.

Lawyers have to be especially careful with their online interactions because there are some very rigid rules surrounding the profession–more so than many professions. Lawyers also have to be careful because they never know when their words might come back to bite them, in court or other proceedings. Of course, the same could be said for people in any profession.

Identifying whether you’re a lawyer or not to an online discussion really doesn’t add that much to the quality of the discussion. If an opinion given is bad or silly, that fact will soon be made apparent by others in the thread; it will get torn apart by those more knowledgeable. If the opinion is good, or interesting, does is really matter if the person is a lawyer? Consider people like Seth, who has made a passionate study of DMCA and censorware–should we value his opinion less because he’s not a lawyer?

When it comes to discussing legal topics, we shouldn’t feel that we have to attach a disclaimer to our opinion. Anyone who misconstrues a lively debate for a course of action in court really doesn’t deserve our sympathy. The same for anyone following advice given in forums and comment threads by people they don’t know. I marvel all the time how we’ll download software or modify our computers based on the advice of total strangers.

Think of comments with legal advice from unknown people as being the equivalent of a store coupon: valuable only if what’s being offered is really what we need; otherwise, they’re only worth $0.0002 cents, each.

Still, some in the legal profession may be uncomfortable with not establishing their professional affiliation during a legal discussion. Instead of IANAL, what the lawyers should do is use an acronym of their own: IAAL–I Am A Lawyer. Perhaps they can use Esq. after their names (“SexyKitten Esq”).

Or stick with, “Wow. Man, that sucks. You should get a lawyer.”

On Steve Jobs and his design obsessions, Nick Carr writes:

Steve Jobs, I think it’s fair to say, looks at Apple products as works of art, as little functional sculptures aimed at giving aesthetic pleasure as well as utilitarian benefit. That’s why it pains him so deeply to have people hack into his machines and fiddle with their guts. When a customer “opens” an iPhone, the act doesn’t just complicate Apple’s business relationship with AT&T and the phone’s other exclusive carriers; it stands as a personal affront to Jobs. It’s an assault on the integrity of his artifact.

Nick has nailed it, not just for the iPhone but any Apple device. Utility is sacrificed to form. Whether it’s a good decision for Apple depends on when you ask the question. Ask it the day of a product release, good. Ask it two weeks after a product release, bad.

Nick’s responding to the disgruntled grumbles of iPhone buyers who are now the proud owners of iBricks after the iPhone upgrade. So disgruntled that many customers are contemplating a class action lawsuit against Apple.

Serendipity knocks. A little digging around discovers for us the iPhone/AT&T service agreement out at Apple. Included within the agreement we find the following:

ARBITRATION AGREEMENT
(1) AT&T and you agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:

* claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
* claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising);
* claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
* claims that may arise after the termination of this Agreement.

References to “AT&T,” “you,” and “us” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or equipment under this or prior Agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court. You agree that, by entering into this Agreement, you and AT&T are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement.
…
(6) The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND AT&T AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and AT&T agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provison is found to be unenforceable, then the entirety of this arbitration provison shall be null and void.

(emph. mine)

Another opportunity to highlight the Arbitration Fairness Act of 2007, calling for the elimination of binding mandatory arbitration agreements from contracts.

Recently, The Ninth Circuit Court ruled that the class action provision of the arbitration agreement for AT&T/Cingular in California was unconscionable under California Law.

However, whether this clause or the ruling would hold with the iPhone/AT&T agreement depends: if the class action claim is brought in California; whether the wording on the agreement is the same, and still would be ruled unconscionable in court; whether the agreement applies only to the service, or to the phone/service combo.

Regardless, if the customers were to move on a class action lawsuit, it’s very likely AT&T would move to compel arbitration. Maybe it would be simpler just to be a good little Apple customer, stop being naughty, and let Steve preserve his artistic vision.