Legal, Laws, and Regs

Breaking the mandatory arbitration back

People over Profits has a campaign under way to encourage Congress to support this bill. It’s important to let your Congressional representative know you support the Arbitration Act of 2007.

Ars Technica and Tortdeform both write on the recent, and important, decision of Douglas v. Talk Ameria in the Ninth Circuit Court of Appeals. In the decision, the court ruled that companies may not change terms of service arbitrarily, forcing people into having to check for such changes in online agreements; then denied the motion to compel arbitration–one of the changes actually added to the terms of service that initiated the class action lawsuit.

This is important because it challenges the concept that a person has to be forced into visiting terms of service on some periodic basis in order to ascertain changes–a onerous task, indeed.

This is also an interesting case as regards mandatory arbitration clauses. I’ve written on this issue before, and the fact that online services are now slipping in mandatory arbitration clauses–joining the banks, plumbers, credit card companies, house builders, computer manufacturers (Dell being one of the most prominant), realtors, your employer, car dealers, hospitals and others who slip such clauses in, usually in small print, and buried among dozens of other changes, worded in confusing legalese–should help drive out that this isn’t ‘just’ a problem with deadbeats looking to skip out on debt or fakes wanting to sue the poor drug companies, as the pro-mandatory arbitration supporters insist.

I bet I can safely say right now, you’re covered under a mandatory arbitration clause right now that abrogates your class action and other civil and legal rights, and you don’t even know it.

What perfect timing, then, to segue into drawing your attention to the Feingold-Johnson billThe Fair Arbitration Act of 2007, just introduced into Congress last week that would block mandatory arbitration clauses.

The issue has never been about whether arbitration is or is not a good thing. Arbitration entered into willingly by two equal parties, both of whom can argue the case without paying thousands in exorbitant fees in front of competent and truly unbiased arbitrator, is a good thing. Arbitration purely for profit, as a way of skirting the laws of the land and a form of bastardized tort reform, is not.

What the Feingold-Johnson bill is about is that people should be given a choice. This wholesale movement of companies forcing mandatory arbitration clauses, using for profit arbitration companies where cases are processed in assembly like fashion–six to an hour being typical–for fees far in excess of what courts charge, and typically favoring corporations over the individual (and disregarding many laws of the land, including the civil rights) is not a good choice.

I’d suggest contacting your congressional representatives and tell them you support this bill. After all, if arbitration is the good thing these companies say it is, then why do they need to add these mandatory arbitration clauses in the first place?

From American Homeowners Resource Center

In 1995, Justice Sandra Day O’Connor wrote: “over the past decade, the [Supreme] Court has abandoned all pretense of ascertaining congressional intent with respect to the Federal Arbitration Act, building instead, case by case, an edifice of its own creation.” Justice O’Connor was absolutely right.

Starting in the mid-1980s, the Supreme Court dusted off the Federal Arbitration Act (“FAA”) – an obscure procedural statute that had been the subject of only half a dozen or so Supreme Court decisions in 60 years – and transformed it into something bearing little relation to the law considered and enacted by Congress in 1925. Concerned with the workload of the federal courts, the Supreme Court discovered that the FAA could be used as an extensive docket-clearing device to move large numbers of cases out of the court system and into a system of private dispute resolution. The cases cleared out of the court system under the judicially re-tooled FAA have been disproportionately the claims of consumers, employees and small-business owners.

The real winners under the modern system of FAA arbitration are large companies who decide to write arbitration clauses into their “take-it-or-leave-it” contracts. Also benefitting from the modern FAA are the arbitration-providers and individual arbitrators who find a huge increase in demand for their services. What is, for the courts, a system of “do-it-yourself court reform” has increasingly become a system of “do-it-yourself tort reform” for regulated business entities seeking to avoid liability for wrongs done to consumers, employees and small-business franchise owners.

Excerpt from the testimony of David S. Schwartz, Associate Professor of Law at the University of Wisconsin Law School, before a congressional hearing on mandatory arbitration clauses held in June. The article also includes a link to the PDF for the complete testimony. The link in this paragraph is to the recordings from the event, including others testimony.


Artists create, developers hack

From the email list associated with the Creative Commons group, I found an interesting thread, where it seems many members of the organization believe that the non-commercial option in the CC licenses should be abolished. As one person wrote, works licensed under cc didn’t really challenged the dominant market paradigm. especially the most of them are licensed under ‘noncommercial’ licence.

There was discussion in the thread about how new models for artists will arise someday, and the use of the non-commercial license is an opening wedge. As example, thread members discussed how the software community now embraces many licenses that provide for free use of software: licenses such as GPL (GNU Public License), which prohibits use of GPL licensed work in new efforts that will not be released GPL; as compared to other licenses such as free-BSD, which allows such. I’m not up for another debate on CC, but I did notice the following from the thread:

it will take a little longer until the success of works under CC-BY and CC-BY-SA will really challenge the dominant market players, but it will happen.

True that this would come sooner if the people wouldn’t need to go through a learning process that NC is not so necessary after all, but even the coding community took a while until they understood the workings of free software (even though they have much less heart and soul attached to their works compared to many artists)

My, aren’t we precious.

Connecting Copyright

Virgin bites Creative Commons on the butt

Wayback Machine entry for post including comments.

Rogers Cadenhead finds an ad featuring Molly Holzschlag. About my post, he wrote:

Shelley Powers puts the blame for this squarely on Creative Commons for not educating users of its licenses. If you release photos for commercial reuse, but you don’t secure model releases from people they depict, you’re subjecting yourself — and those who use your work — to a thorough proctological workup by an intellectual property attorney.

Actually, I never said any of this. I said that this demonstrates that people are confused about the commercial license, because why on earth would a person add this CC license when they don’t have model releases? Or really want the photos used in ads?

Virgin Mobile’s part in this is less interesting, to me, than the issue of people putting a for-commercial CC license on a work that can’t possibly be used without a lot of additional work for commercial purposes. I didn’t once say that Virgin’s use of the photos wasn’t without its own problems.

Additionally, I’ve looked at many of the photos used in this campaign. Why on earth would the people use the commercial license with these items? None that I’ve seen are anything more than casual snapshots.

I’ve written–oh, a time or two–on my concerns regarding the Creative Commons licenses. I’ve stated that they’re confusing, that people are socially pressured and overly encouraged to use such without understanding the impact, and that we don’t really understand how these licenses work with existing laws.

Doug Pardee sent me an email giving me a heads up on an uproar at Flickr about photos Virgin Mobile is using for an ongoing campaign. Seems that Virgin Mobile used Flickr’s CC licensed photo search engine to find photos that allowed commercial use. The company then used such commercially, including a photo of an underage girl without her or her parents’ signed consent.

What’s interesting is the debate on this, as people who aren’t lawyers ask each other what does ‘commercial use’ mean, and when can a person publish a photo of an individual and so on. There is still a massive misunderstanding about the terms used in these licenses, and little done on the part of the CC promoters to do anything other then grunt, “CC, Good!”

Even now, with this discussion raging over at Flickr, another Flickr Forum item discusses the Wellcome Trust decision to release its image collection under CC, and then references those on Flickr who don’t do the same, saying, “Compare the Wellcome Trust’s attitude to that of some of the photographers here on Flickr who consider EVEN educational use of their photographs to be GRAND THEFT PHOTO.”

I would assume that the Wellcome Trust had lawyers who helped in the decision to release photos, and did so with a very clear understanding of the license, the implication, and what the CC licenses mean in regards to existing copyright laws. Obviously, the same cannot be said for many Flickr users, and social pressuring is only going to make matters worse.

In many countries, including the US and Australia, commercial use of photos requires signed consent of identifiable people, and signed consent of a guardian if the person is under legal age. To me, commercial use does not mean that your photos will be featured in a magazine. It means that your photos will be featured in an ad, and used to sell something. However, the only example of commercial use the CC organization provides is one where a person takes a photo and someone else prints it and sells the print. These are two completely different acts. Does this mean I’m wrong? If I am, then how does one classify the use of a photo in a commercial? As editorial use?

To me, editorial/educational (non-commercial) use means that your photos can be used in magazines or to accompany newspaper articles, or in classes or other forms of instruction. Such use also means that your photos can be used to promote organizations and attitudes you may despise, or even hate, but that’s besides the point.

This is what I understand about the CC, but I’m only a layman, and only have a layman’s view of all of this. Don’t look to the lawyers for advice, though; they’re so hemmed in by the rigid and restrictive rules of their profession, I’m surprised they can even identify themselves as lawyers, much less give a public opinion on anything.

Definitely don’t look for clarification or even discussion on these issues at the CC site. This is the ultimate ‘feel good’ organization, where the world is full of happy happy people creating happy happy works sharing with other happy happy people who would never abuse such generosity.

More at:


Legal, Laws, and Regs

Speaking of which

I had written about the proposed projects for the five million in fines FERC fined Ameren. I may be interested in what’s happening in the aftermath of the Taum Sauk dam break, but one thing I’m not is a ‘local’, with a local’s intimate knowledge of the politics and the organizations. Black River News points today to a letter that a local, James Hawley, sent as response to the recommended proposals, and it is a direct look at how political many of the recommendations are.

(The FERC correspondence system is based on scanned correspondence and uses Java to display such, so the system isn’t particularly friendly. Access the letter through FERC, clicking on the link labeled Project Correspondence in the right side of the page–Hawley’s letter is the first in the list. If you have pop-up blockers, you’ll have to allow the site to open new windows to use the FERC document viewer.)

Among some of the criticisms of approved projects:

3) Case end loader, boom axe mower and two dump trucks–First, has any qualified company or person outside of the area looked at the existing trucks and equipment Reynolds County owns? Second, a boom axe mower is not environmentally friendly. It rips, mutilates and kills trees and vegetation. The Reynolds County Commissioners requested $259,500.00 for these trucks and equipment. I as others can’t get our roads maintained. Why would we want this equipment when only the selected get their county roads maintained? This again is for political gain and definitely should not be approved.

14) Building construction, dog purchase, and operational expenses for establishing a training facility for search-and-rescue dogs–This is the wording from AmerenUE’s web site, which exposes the deceptive motives from this panel. This wording doesn’t reveal that this is for hiring a K-9 handler and training center for drug and bomb sniffing dogs. Again, this money should not go for salaries and we don’t need bomb sniffing dogs.

22)Marketing and advertising campaign for the Iron County Hospital–This is a local hospital and everyone in the community knows where it is. People will not drive from Farmington, Potosi or anywhere else when their cities already have hospitals. The local paper says it’s for doctor recruitment. Which is it? Marketing and advertisement or doctor’s recruitment. Either way $70,000.00 is a lot of money for either purpose. Did they detail where this money is to be spent? This would be a total waste of money.

24) Purchase of a CT Scanner for the Advanced Healthcare Medical Center — This Center has had major financial problems in the past. This is supported by the Panels stipulation of “If the center goes out of business clause”. It states that the equipment must stay in Reynolds County if the Center goes out of business. The hospital in Iron County went out of business and it was years before another one was built. What is Reynolds County going to do if the Center goes under? Where will this scanner be stored and for how long?

The letter brings up more than enough to force FERC to get involved with this process. It seems to me that Ameren has used this to ‘buy’ the goodwill of the power elite in the community, which is not compatible with FERC’s admittedly vague and somewhat indifferent guidelines.

What I thought was even more interesting was a comment Hawley’s comments about a couple of the board members and their view of the Johnson’s Shut-Ins. He wrote:

One voting panel member, Jim Chadbourne, and the county commissioner, Wayne Henson, who had an influence with some of the projects, do not even understand the economic value of the Johnson Shut-Ins State Park. They have both stated that the park doesn’t bring any revenue to Reynolds or Iron County. With this bias, it’s obvious that they would summit projects away from “at or near the affected area”. We own a family campground and lodge next to the State Park and 85% of our business comes from the overflow of the Park.

Before the dam broke and one time when I was out at the park during the winter, among the visitors were a young couple from Japan, and a family from Germany. This during the down time, in a cold January where ice formed along the Shut-Ins. This region has such potential for tourism. Managed carefully and promoted wisely, it could be a strongly sustaining source of income for residents, as well as taxes for the community. It could be a place for families in the summer, and a business retreat or educational opportunity in the winter. With the unfortunate Taum Sauk dam break, there is even more potential for bringing visitors into the community–though such effort does require some imagination on the part of community leaders.

I’m astonished how little some of the people in the area seem to value what they have. To them, the Taum Sauk dam break seems less a tragedy, and more an unexpected windfall, which is an atrocious way to treat this event. Add this to the silence regarding the ongoing effort with the cleanup and I can’t see how the people of Missouri are being well served b this panel, or Ameren’s, efforts.

Just Shelley Legal, Laws, and Regs

Hanging up the keys

Recovered from the Wayback Machine.

A few weeks back, an 84 year old woman drove her car through a grade school lunchroom, killing an 8 year old. They haven’t come out with the specifics of what happened, but it was broad daylight, good weather, and the school was a distance off the road.

This led to more discussion about when people should hang up their keys. After this weekend, I’m even more acutely aware of this as an issue.

Yesterday, driving through a parking lot, a women coming in from a side road just pulled out in front of me, without looking, forcing me to slam on my brakes. I was lucky, and I didn’t hit her. Today another young woman wasn’t as lucky.

I had to go to the Radio Shack, at the mall near my house. The mall’s parking lot is typical for the area: a line of shops with a road in front and parking on the other side of the road. The only cross walks were in front of the all-you-can eat buffet and the department store.

I was standing by the side of the road, waiting for a break in the traffic to cross, when one person stopped for me to my left, and a woman to my right slowed down to stop. She stopped right in front of a lane leading into the road, in the lane closest to the shops. As I started across, I noticed another woman pulling out in the lane, right at the woman who was stopped. I yelled and waved my arms; the lady who was stopped was pretty limited on what she could do with a pedestrian, me, in the road and a car behind her.

We both watched as this woman just drove into the side of her car. Bright sunshine, 100% visibility, the bloody car is right in front of her. She wasn’t looking to the front, though. Nor did she look to the left, either. She was looking to the right, and didn’t once look anywhere else. In fact, if the car to the left hadn’t stopped for me, it probably would have hit her, or she would have hit it.

I checked to make sure the woman who was hit was OK, and she was fine, suffering only a combination of being rattled and astonished. I then went over to the older woman to see if she was fine, and she said, “Oh, I’ll pay for the damage. Just have her contact me,” and then started to pull away.

I put my hand on her car, and told her, “Ma’am, you can’t go. You have to exchange insurance cards.” As she was blocking the lane, I mentioned she needed to pull over out of the way. Again, she started pulling forward without even looking, this time right at an SUV. I stopped her, and signaled the other horrified driver to go. Didn’t have to signal that driver more than once–she was out of there.

I got the older woman parked finally, and she got out. Sweetest thing you’ve ever seen. The younger woman was, also — more concerned that the other wasn’t hurt. Though this was a parking lot accident, she called the police and though they can’t cite anyone in a parking lot accident, I think she wanted the police to check out the older woman.

Bluntly, this woman did not belong behind the wheels of a car. She was easily confused, extremely malleable, and did not once properly check before making any moves. Not even completely aware of what she needed to do after an accident.

Hanging up the keys. For many, it means losing independence. For this older woman, it probably means not meeting her friends at that all-you-can-eat buffet, a favorite place for the seniors. For others, it means not taking off for the trails, not shopping, having to depend on others, trying to depend on public transportation, which is still quite poor in most communities.

I only just started driving in my 40’s, and I love to drive. I shudder at the thought of the time when I’ll have to give up my wheels. I hope I make that decision before it’s too late.

My Dad gave up driving at about 75, because he had arthritis in his back and neck, and it was too hard for him to look around for cars when he wanted to change lanes. It was tough for him to quite, because he was then dependent on family or whatever public transportation existed. Luckily, in Seattle, and then later in Bloomington, he did have access to public transportation.

One of the reasons he made this decision is because, long ago when he was a Washington state Patrolman, he was racing about 70 MPH to an accident scene, lights and sirens on, when a elderly man pulled right out in front of him. The man and his wife were killed, and Dad was in the hospital for three months.

Statistically, the most dangerous drivers are under 24, but the people who get involved in more accidents in ratio to how much they drive, are over 70. The AARP recognizes this and provides special driving classes for folks over 65.

In our state, once you hit 70, you have to get your license renewed every three years, rather than six. In Illinois, there are more restrictions, including driving tests every two years after you hit 80.

When is the time to quit? There are people capable of driving into their 90’s, but others suffering vision or other problems who should quit in their 50’s, or sooner. We’d like to leave this up to the individual, but as this woman today demonstrated, as the woman who killed the child, or the man who drove out in front of my father, people don’t always make the right decisions.

The day when I have to hang up my keys is far off, I hope. May I have enough wisdom to know when it’s time. I can’t help thinking, though, that the day I can’t drive anymore will be the beginning of the end for me.