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IP: interesting point on the DMCA also
From: David Farber <dave () farber net>
Date: Fri, 14 Sep 2001 14:19:07 -0400
Date: Fri, 14 Sep 2001 09:44:14 -0700 (PDT) From: Ethan Ackerman <eackerma () u washington edu> To: <farber () cis upenn edu> Subject: Re: IP: On the other hand -- maybe it is wise -- Airlines Seek to Limit Lawsuits Over Attacks Greetings Dave, While not wanting to increase IP's recent high volume, I felt compelled to reply to the email you passed on From Jonathan Spira. Feel free to pass on to IP if you wish. The topic of limiting airline liability has already popped into the Congressional goings on, and the American Ass'n. of Trial Lawyers has already called for a moratorium on litigation, so the issue is timely. But it isn't helped by anti-litigation sentiment, which has several seldom realized shortcomings. (An entirely different matter as to whether it is desirable to consider right now, but I offer this in an attempt to give people something as light and unimportant as "government intervention analysis" to think about, a distraction if you will) I assume there are many out there who could provide a much more compelling argument, but the simple reality is that limiting or removing liability has the exact effect of removing many if not all incentives to provide or enhance security. It is actually a government subsidy (Not a universally bad thing, but it must be looked at in that way.) An analogy that IP readers may find quite compelling: The introduction of the anti-circumvention provisions of the DMCA have the effect of granting legal sufficiency to any anti-circumvention tech. This reduces (not removes, just reduces) incentive to find or use more effective technologies. In a similar manner, giving legislative blessing to the current (in)security of the airline industry in the form of immunity removes if not reduces any incentive to adapt stronger security. I strongly suspect that stronger (or specifically, more effective) security is just what the airlines and American public could use right now. Make no mistake, granting immunity or reducing liability is a form of government subsidy or market intervention. It is a declaration that the power of the state (exercised by specific citizens through the venue of the courts) will not be exercised against a specific party. To that extent, it is vital that the effects of that market intervention be analyzed. While it is valid that litigational excesses be checked (Note that lawyers are prohibited by federal law from soliciting crash victims for 45 days after an accident already) and valid reform of legal systems to increase efficiency be pursued, I think it is important to note that many calls for "checking litigative excess" are simply reworded forms of "Government subsidy for me please." (Not to accuse Jonathan in any way of having that intent.) Rather than calls for limiting liability, call for increased efficiency in compensation of victims, or (radical, I know) increased liability. Strict liability has been known to remedy a few wrongs, and it is a very efficient form of transferring costs and compensating suffering. The point is, consider the legal realm for part of what it is, an arm of government interaction in the marketplace, and analyze legal ramification in those terms as well. On Fri, 14 Sep 2001, David Farber wrote: > >To: farber () cis upenn edu > >From: jspira () basex com > > > >Historic precedent shows that tragic events of lesser magnitude have > >sounded the death knell for two major airlines, which disappeared within a > >decade of the event (Pan Am and Flight 103, TWA and Flight 800). If > >something is not done to limit the amount of litigation against airlines, > >which have already lost tens of millions this week and face a steadily > >declining customer base in coming months (not to mention loss of mail and > >cargo revenue since these have been eliminated for the time being from > >passenger flights), the survival of the No. 1 and No. 2 U.S. carriers > >(American and United, respectively) is called into question. > > Ethan Ackerman Senior Research Fellow, Center for Law, Commerce & Technology University of Washington School of Law 1100 NE Campus Parkway Seattle, WA 98105 Tel: 206.440.0853/Fax: 206.616.3427 http://www.law.washington.edu/lct/
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