Curses!
Gary's on to us, but never fear - our resources are vast. Lock down your comments and de-list your email.

Blog You Here, Sue Me There
Another case currently in the appellate pipeline in California will decide whether net users in other states have to defend claims in California that involve only out-of-state conduct. On December 12, 2001, the California Supreme Court granted review in Pavlovich v. Superior Court, which was decided last August. The issue at stake is whether a defendant in Texas (open-source enthusiast Matthew Pavlovich) who posted the DeCSS code on his site should have to defend a suit brought in California by the DVD CCA. Pavlovich argued to the trial court and Court of Appeal that his actions in Texas did not give California jurisdiction to hear the DVD CCA's claims against him; if the DVD CCA wanted to pursue him it would have to do so where he lived and where the conduct took place. The Court of Appeal disagreed, finding that the claims could proceed in California because Pavlovich knew or should have known that his conduct could harm industries with a strong presence in California: "Because Pavlovich knew that California is commonly known as the center of the movie industry, and knew that Silicon Valley, California, is one of the top three technology 'hot spots' in the country, he knew, or should have known, that the DVD republishing and distribution activities he was illegally doing and allowing to be done through use of his Web site, while benefitting him, were injuriously affecting the motion picture and computer industries in California. The question is whether Pavlovich's lack of physical and personal presence in California incapacitates California courts from jurisdictionally reaching him.... We hold it does not."

EFF quotes Pavlovich's lawyer as saying this means "that movie industry moguls can drag web publishers from anywhere in the world to defend themselves here in California." He's correct, but of course it goes further than that. If the Supreme Court affirms this decision, any party who alleges harm in California conceivably can compel web publishers from other states to defend claims in a California court. The appellate court did not consider this too great a burden, reasoning that for those who "purposely derive benefit" from intrastate activities, it is not unfair - given the benefits of "modern trasportation and communications" - to subject them to litigation in another state.

So, until the California Supreme Court decides how this will come out, all you bloggers had better be extra nice to us Californians: lots of links please, and let's keep the libelous epithets to a dull roar, shall we? That is, unless you're hankering for an extended "vacation" here while we iron out our legal differences.

SLAPP-ing Back
Doc's blogging today from SXSW about SLAPP suits and other fauna, including fake corporate blogs - "Like your dad trying to buy pot," as an audience member pithily put it. As for SLAPP litigation - "Strategic Lawsuits Against Public Participation" - California, Utah, Oregon and New Mexico all have enacted "Anti-SLAPP" statutes intended to protect citizens from lawsuits resulting from any act in furtherance of constitutional rights of petition or free speech. As the California legislature noted when enacting its Anti-SLAPP provision (scroll down to CCP Section 425.16), "There has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition . . . The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly." Anti-SLAPP statutes protect those who engage in protected activities, which include (in CA) "any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest," and other conduct that furthers the rights of speech and petition "in connection with a public issue or an issue of public interest." Federal courts also will enforce state anti-SLAPP laws where applicable, and in general protect activities under the First Amendment. The California Anti-SLAPP Project, and obviously the EFF, are excellent resources for those who may find themselves on the wrong end of SLAPP litigation.

Current Anti-SLAPP Issues In California
The California Supreme Court has at least two Anti-SLAPP cases pending. In Wilson v. Parker, Covert & Chidester, 87 Cal.App.4th 1337 (2001), review granted 6/20/01 (S097444), the Court will consider whether a defendant's failure to obtain a dismissal under the Anti-SLAPP statute also helps shield the plaintiff from liability for malicious prosecution. And, in Equilon Enterprises v. Consumer Cause, 85 Cal.App.4th 654 (2001), review granted 4/11/01 (S094877), the Court will decide whether a SLAPP defendant must show the lawsuit was brought with the intent to chill the defendant's exercise of free speech or petition, in order to obtain a dismissal. In other words, in Equilon the Court will address whether suits should be dismissed if they have a chilling effect - regardless of what the defendant may be able to show about the plaintiff's intent.

Your tax dollars at work, Doc. Blog on!

Temperature's A-Risin'
The Chilling Effects Clearinghouse provides lots of answers for those interested in knowing and protecting their online rights. A joint project of the EFF and clinics from the Harvard, Stanford, Boalt Hall (Berkeley) and University of San Francisco law schools, this site primarily addresses copyright issues surrounding all kinds of online activity, including linking, protest, parody and criticism, and everybody's favorite: the DMCA. There's also a good trademark section. I'm glad to see my alma mater participating in such an endeavor, and also operating its Samuelson Law, Technology and Public Policy Clinic, which helps clients in the no-man's-land between public interest and intellectual property rights.

-Also on the side of the good guys: the Stanford Law School Center For Internet and Society, which defends satirist Zack Exley against trademark dilution claims from CNN. (Figured some of you - now, I'm not naming names - might want to save the link.)

For The Blogger's Bookshelf
Yesterday the LA Times reviewed a new book, Atonement, that captures a common writer/diarist's dilemma at any age:

"Trapped between the urge to write a simple diary account of her day's experiences and the ambition to make something greater of them that would be polished, self-contained and obscure, she sat for many minutes frowning at her sheet of paper and its infantile quotation and did not write another word. Actions she thought she could describe well enough, and she had the hang of dialogue. She could do the woods in winter, and the grimness of a castle wall. But how to do feelings? All very well to write she felt sad, or describe what a sad person might do, but what of sadness itself, how was that put across so it could be felt in all its lowering immediacy? Even harder was the threat, or the confusion of feeling contradictory things. Pen in hand, she stared across the room toward her hard-faced dolls, the estranged companions of a childhood she considered closed. It was a chilly sensation, growing up."

The reviewer (Daphne Merkin) called the book "the Great British Novel," and summed up: "In the seriousness of its intentions and the dazzle of its language, it made me starry-eyed all over again on behalf of literature's humanizing possibilities." Sounds like a worthy supplement to business as usual. As for things conveyed in all their lowering immediacy, this is why Allied and Kalilily are mandatory reading. In their unique ways, these ladies make literature's humanizing possibilities a reality every day.