The Ethics of Cyber Mooching

David Sirota explores the question:

Healthy interpersonal relationships always involve a careful dance around the hard-to-define line between friendly sharing and selfish mooching. Homeowners wonder: How many times is it OK to ask to borrow my poorer neighbor’s lawn mower? Family members ponder: How often can I ask to borrow the museum pass from my economically equal cousin? Friends consider: How frequently can I ask to use a wealthier buddy’s NBA season tickets? In each of these questions (and you know you’ve asked yourself one of these), we are really asking when the other person will think we’ve crossed the Mooch Line, and when that person will angrily implore us to just save up and buy what we want for ourselves.

In the Internet age of frictionless data transfer, such unanswered — and potentially unanswerable — queries are now even more pervasive. Whether sharing legally (lending Kindle books, etc.) or illegally (ripping DVDs, pilfering Netflix or an MLB.com pass, etc.), whom we ask and how much we ask them for are ethical quandaries whose rules shift depending on familial connection, types of friendship and economic status (among other factors). (A disclaimer: Nothing in this article condones any illegal sharing of anything. It is only to acknowledge that such illegal sharing does, in fact, occur — and then to explore the ethical implications of that kind of behavior.)

Sirota presents three options to avoid mooching:

Option 1 is bartering. If someone gives you something that they are paying for, return the favor with something they want that you already have or purchase. Lend them a Kindle book. Let them have access to your Wi-Fi network. Something.

Option 2 is putting up some cash to help defray the cost of what you are getting. In the case of HBO Go, TechCrunch’s data tell us that many believe a fair market price is something along the lines of $12 a month (less than the full HBO subscription, but still fair because you don’t get all of the versatility of that subscription).

Option 3 is getting the service in question from someone higher on the economic food chain, preferably within your family, where (theoretically) the Mooch Line is a bit more forgiving, and where parents and grandparents in particular have a near ancestral obligation to permit mooching.

Do the same options work for pirated content? They arguably do as between the moocher and moochee, although they don’t do anything to address the injured content distributor.

Personally (in the context of legal sharing only, of course), I usually go with Option 1, in the form of looking for opportunities to help those who have shared with me, rather than in the form of outright bartering.

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Lawmakers Heed Facebook’s Ethical Advice

Following up on a prior post (March 24th), Maryland has quickly enacted legislation prohibiting employers from asking for social media passwords, and it looks like Congress may be stirring on this issue, too: 

If you’re worried about an employer or potential employer asking for your Facebook or Twitter password, you might just want to move to Maryland. The state’s General Assembly has become the first to pass a bill to keep social media passwords safe from employers.

Just a few weeks ago national attention was put on the issue of job applicants and employees being asked for their Facebook passwords so that companies could ensure the individuals had appropriate social media identities.

In response, New York Sen. Charles Schumer and Connecticut Sen. Richard Blumenthal asked the U.S. Department of Justice to investigate if the practice violates federal laws.

The full ABC News story can be found here.  Maybe the fired elementary school teacher’s aide should move to Maryland.

Can a New York Attorney Use Google Docs?

David Hricik posed the following question on The Legal Ethics Forum:

When you use Google Docs, you give Google the following license to “Content” which is, basically, everything you put up:

11. Content license from you

11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This license is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.

11.2 You agree that this license includes a right for Google to make such Content available to other companies, organizations or individuals with whom Google has relationships for the provision of syndicated services, and to use such Content in connection with the provision of those services.

11.3 You understand that Google, in performing the required technical steps to provide the Services to our users, may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this license shall permit Google to take these actions.

11.4 You confirm and warrant to Google that you have all the rights, power and authority necessary to grant the above license.

Query whether this is ethical for lawyers to use?

Subsequent to Hricik’s original post, a commentator posted additional language from a related document that adds the following limitation on Google’s bolded rights: “for the sole purpose of enabling Google to provide you with the Service in accordance with the Google Docs Privacy Policy.”

Here are some relevant portions of the Google Docs Privacy Policy:

Information We Share

We do not share personal information with companies, organizations and individuals outside of Google unless one of the following circumstances apply:

. . .

For legal reasons

We will share personal information with companies, organizations or individuals outside of Google if we have a good-faith belief that access, use, preservation or disclosure of the information is reasonably necessary to:

  • meet any applicable law, regulation, legal process or enforceable governmental request.
  • enforce applicable Terms of Service, including investigation of potential violations.
  • detect, prevent, or otherwise address fraud, security or technical issues.
  • protect against harm to the rights, property or safety of Google, our users or the public as required or permitted by law.

The New York State Bar Association Committee on Professional Ethics has addressed the storage of documents in the cloud in Opinion #842 (the link is here), concluding as follows:

We conclude that a lawyer may use an online “cloud” computer data backup system to store client files provided that the lawyer takes reasonable care to ensure that the system is secure and that client confidentiality will be maintained. “Reasonable care” to protect a client’s confidential information against unauthorized disclosure may include consideration of the following steps:

  • Ensuring that the online data storage provider has an enforceable obligation to preserve confidentiality and security, and that the provider will notify the lawyer if served with process requiring the production of client information;
  • Investigating the online data storage provider’s security measures, policies, recoverability methods, and other procedures to determine if they are adequate under the circumstances;
  • Employing available technology to guard against reasonably foreseeable attempts to infiltrate the data that is stored.

Based on the foregoing, it appears that the answer to David’s question for New York attorneys is, in a word, “no.”  At least not on the terms quoted above, even as modified by the rider. An attorney has no “enforceable obligation” against Google which requires Google to preserve the confidentiality of the attorney’s documents

The rider doesn’t even come close to creating the level of protection described in Opinion #482. Perhaps the New York or American Bar Association should develop a standard agreement that cloud document providers must incorporate if they want attorney business? Otherwise, the individual attorney doesn’t have much negotiating power and isn’t going to be able to get the terms she needs.  At least not out of Google.   

By the way, did you know that Google is in the legal services business

Link Ethically

1. Botox is not exempt from New York State sales tax.

2. The power of strategic inferiority.

But sometimes the most successful innovations involve coming up with inferior products, but making them cheaper and more convenient. So it was with the late Murray Lender, former CEO of Lender’s Bagels, who passed away last week at the age of 81.

Rest in peace, Murray.

3. Is there anything wrong with defendants wearing nonprescription glasses?

According to the Post, nonprescription “hipster” glasses have become something of a sensation at Washington, D.C., courthouses. Inmates trade them before hearings or obtain them from family members. Sometimes lawyers give them to their clients.

We all know that wearing glasses doesn’t mean that you are smart, or that you necessarily read a lot. You would think that the frequency of defendants wearing glasses would, at some point, lead people to perceive the wearing of glasses as being indicative of a less trustworthy personality.  See Exhibit “A” below.

4. On “greenwashing,” and the lawsuits related thereto.

As the world increasingly embraces the mantra of green products and services, the legal community is encountering a proliferation of litigation surrounding false and misleading environmental marketing claims. Popularly called “greenwashing,” this recent, albeit alarming, phenomenon merges the concepts of “green” (environmentally sound), and “whitewashing” (to gloss over wrongdoing) to describe the deceptive use of green marketing which promotes a misleading perception that a company’s policies, practices, products or services are environmentally friendly. “Eco-Friendly,” “organic,” “natural,” and “green” are just some everyday examples of widely used labels that can be confusing, even misleading.

Nike Obtains Injunction Against Reebok For Unethical Tebowing

Check out this story about a massive feud brewing between Nike and Reebok.  

Nike, which takes over as the official NFL merchandise manufacturer on April 1st after Reebok held that distinction for the past 10 years, is not too pleased that Reebok took advantage of Tebow-mania hitting Broadway (the Denver Broncos traded Tim Tebow to the New York Jets on March 21st) by rushing a bunch of Jets jerseys with Tebow’s name and number to market before Reebok’s deal with the NFL expires on March 31st.

An injunction was issued yesterday prohibiting Reebok from selling any more Tebow/Jets merchandise and requiring Reebok to recall the offending Tebow merchandise.  (Nike Inc. v. Reebok International Ltd., 12- cv-2275, U.S. District Court, Southern District of New York).

I can see the ethics of both sides here.  Nike thinks Reebok unfairly flooded the market with Tebow merchandise near the end of Reebok’s deal with the NFL in order to ensure that Reebok continues selling jerseys well after its contract expires.  On the other hand, Reebok thinks that it was right and justified in producing Tebow merchandise to meet the instant demand created by the Tebow trade, since it was and continues to be (at least for a few more days) the official NFL merchandiser.

Who’s right?  At least for now, U.S. District Judge Kevin Castel says it’s Nike.  Should be a fun case to watch.

At $135 Dollars Per Pet, Wouldn’t it be Unethical to Leave Fluffy to Fend for Herself After the Rapture?

From NPR, “Was Promise of Pet Care After the Rapture a Hoax?” The New Hampshire Insurance Department is investigating Eternal Earth-Bound Pets to determine exactly that.  Here is the company’s website.

Useful info from the company’s FAQ page:

Q: What if one of my family members are left behind. Will you still take possession of my pet?

A: That depends. When the rescuer arrives, if your loved one wants to retain possession of the pet, the pet stays in the home.   We expect in these circumstances that the pet will offer the family member some comfort and stability given the trauma of what has occurred.  If the family member prefers, we will adopt the pet per our contract.

Q: How can your rescuers possibly pay for my pet’s care for only $135.00?

A: The $135.00 fee for one pet is not for the cost of their care.  It is to compensate the rescuers for their travel, cover website expenses, and provide a profit margin.  The rescuers have agreed to adopt your pet as their own and care for them as they do their own pets, at their own expense.

A Duty of Loyalty for Make Benefit the Glorious Nation of China

From the Guardian, Chinese lawyers must now swear loyalty to the leadership of the Communist Party:

China‘s justice ministry has ordered lawyers to take an oath of loyalty to the Communist party in an unusual move that has drawn condemnation from lawyers worried about the government’s attempts to rein them in.

The ministry issued a notice on Wednesday demanding that first-time applicants and lawyers who want to renew their licences have to take the oath.

I promise to faithfully fulfill the sacred mission of socialism with Chinese characteristics … loyalty to the motherland, its people, and uphold the leadership of the Communist party of China,” lawyers must say.