IP: interesting point on the DMCA also

[David Farber <dave () farber net>]

> 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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