Patterico's Pontifications

12/18/2014

Tort Law: One Major Reason North Korea Can Dictate What Movies We Watch in the United States

Filed under: General — Patterico @ 7:36 am



Why is “The Interview” being pulled? Why was Steve Carell’s “Pyongyang” cancelled? In the first instance, you can blame the lawyers.

Once all the major movie chains decided not to show the film, that was the end. Why did they make this decision? I’m sure part of the reason is that they worried moviegoers would stay away from the theaters showing the movie, whether the patrons were there to see this film or not.

But I’d say one major reason the chains decided not to show the movie is that they worry about lawsuits if something happens. Lawyer Kurt Schlichter agrees:

Ridiculous hyperbole? Nah. For example, the victims of the Aurora shooting are suing Cinemark over an act perpetrated by a lone gunman. The suit has survived summary judgment, meaning it will cost the chain millions whether there is a settlement or a jury trial. You think chains weren’t thinking about that case and similar litigation when they refused to show “The Interview”?

The apparent decision to forego streaming and DVD sales is also the work of lawyers, from what I have read. Apparently, to collect on insurance, Sony needs a total loss. I would think an insurance company would want them to mitigate their losses, but I don’t write the contracts.

Plus, once the company decides to pull the movie from theaters — a decision that will cost them as much as $200 million, some executive’s head is going to be on a platter. Probably the heads of a bunch of executives. They will be told they should have seen this coming. Now imagine being the guy who decides whether to do a DVD release. You can face the fate of those other executives, or play it safe and kill everything, pointing the finger at the people who are getting sacrificed anyway.

A similar thought process is going on with respect to any movie in development or being considered now: is there some madman or group of madmen who might make violent threats over this? If so, then the project is dead. Simple incentives at work.

Yes, there is a healthy dose of plain cowardice involved here too. (I understand many of you see this as a business decision, but I think you — and the chains — are taking the short-term view over the long-term.) But don’t discount the power of tort law to scare companies into doing ridiculous things. That, in large part, is what started the ball rolling.

76 Responses to “Tort Law: One Major Reason North Korea Can Dictate What Movies We Watch in the United States”

  1. is there some madman or group of madmen who might make violent threats over this?

    Makes me think of the lunacy regarding an obscure video posted to Youtube right around the time of the attack on the US consulate in Kabul.

    I was reading an article about how the Secret Service, due greatly to the corrupting socio-political influence of Obama and his minions, has because increasingly careless or dysfunctional, perhaps even jeopardizing the life of the person they’re mainly entrusted to protect.

    It seems like the US in general has become analogous to the horror in the White House and the nation’s “Secret Service,” meaning so many of the aspects of it that signify its health, normalcy and decency, has been corrupted and undermined. But we made a fateful decision in 2008 and again in 2012, and variations of that played out on the local and state level over the past several decades, and so, et tu, Brute?

    Mark (c160ec)

  2. Of course ! Why do you think the Palestinians were not the villains in the movie made from Tom Clancy’s book “Sum of all Fears?” That’s only one example.

    Mike K (90dfdc)

  3. And all of this on the 35th anniversary of Monty Python’s Life of Brian

    Icy (8ab36d)

  4. I heard comment of this elsewhere, maybe on Hewitt.
    I think if the “Good Samaritan” in the parable for some reason had legal counsel he would have been advised to keep walking.

    I was actually told once by a higher up that I needed to stop doing something because of litigation risks, because “no good deed goes unpunished”.

    MD in Philly (f9371b)

  5. Bill Shakespere had the right Idea I’m afraid…

    Rorschach256 (61bf43)

  6. Meh. Assumption of the risk. If the threat isn’t secret, but made public, and security “reasonable”, then you takes your chances when you visit.

    I think they are far more concerned with empty theaters that could have paying people in them instead. Those who think it’s dangerous will wait for netflix or whatever.

    SarahW (267b14)

  7. Heh! So tort lawyers kept a second-rate piece of exploitative fluff from making money for a movie studio. Wel, like they say, it’s an ill wind that never brings any good.

    nk (dbc370)

  8. Theaters, bleh! Theaters are for the disconnected.

    Pump it through Netflix, Hulu Plus, Amazon, et al. Screw the NKs.

    Or really screw them and Youtube it.

    Dan (00fc90)

  9. A further complication is that most theaters are multiplexes. A standalone theater might, theoretically, allow a showing of the movie with the attendees realizing there is some minor risk. But a 20 screen theater owner risks the potential of a violent attack which could kill or injure patrons viewing other movies. In addition, they face financial ruin if many of the families planning to see any of the other movies showing on the other 19 screens decide its not worth taking the risk, no matter how small, but will wait to see it on Netflix. They aren’t just under pressure from North Korea, but from the producers of The Hobbit, Night at the Museum, Annie and all the other movies looking to make money over the holiday season.

    Joe Zwers (d14eb1)

  10. we have to make an example of north korea number one we need to cut off all their internets

    number two we need to use our drone powers to murdersassinate whichever kim person is most relevant

    number three we need to bomb some nork infrastructure just for fun for example a dam and some ports

    happyfeet (a037ad)

  11. Greetings:

    Why so upset about the NORKies ??? The same deal has been working for the Muslimaniacs for centuries.

    11B40 (6abb5c)

  12. I had an idea this morning. The U.S. government should make a contract with SONY in which they pay thjem $1 million a day not to release the movie. But the contract is only for a limited period of time, renewable, and also ends if there is any kind of ceasefire violation by North Korea.

    And if that doesn’t work – the next thing is, they cancel the NBA playoffs. (Kim Jong Il is a basketball fan)

    And if that doesn’t work – no more export of Kim’s favorite brand of liquor or something.

    I think the hand of the U.S. is even stronger actually, and we could tell Kim Jon Un that if North Korea makes anither missile test or atomic bob tets – the movie is released.

    If SONY doesn’t want to make the deal, the government could buy the rights.

    And let Kim know – one wrong move – the whole world gets to see that movie!

    Sammy Finkelman (8bd44f)

  13. I understand many of you see this as a business decision, but I think you — and the chains — are taking the short-term view over the long-term.

    There is no the long-term view for a business destroyed by the public relations disaster or by a large tort judgment. Plus, I thought the constrained view is that businesses shouldn’t do charity. I don’t think they should do national security, either — although if we want malls, restaurants and theaters hire Israeli-style private security to protect us from terrorist attacks, this is the way to make sure that happen.

    DRJ (a83b8b)

  14. Cinemark SHOULD be sued over the gunman in Aurora. Once a facility declares itself a “gun free zone” – meaning the customers won’t be allowed to protect themselves – the protection of customers becomes it’s the responsibility of the business. I note that people don’t run around putting gun free zone signs on their lawns, for obvious reasons.

    Mike Giles (b8b724)

  15. Whatever happens, it’s no good if the tort lawyers have the last word on this.

    Sammy Finkelman (8bd44f)

  16. 12. I meant Kim Jong Un. Kim III.

    If he cares about that movie so much, there are ways this can be used. It doesn’t even have to be official.

    Just let him know – one wrong move, and that movie is out.

    You probably can’t get him to give up all his nuclear bombs for the non-release of that movie, but what the U.S. can get in return for holding off the release of that movie should not be underestimated.

    Sammy Finkelman (8bd44f)

  17. PanAm was destroyed by a suit blaming them for the Lockerbie crash, which was caused by a passenger accepting a free “boom” box from a stranger.

    Both United and American Airlines were sued by 9/11 victim’s family members. Only the passage of legislation establishing a 9/11 victim’s fund saved those airlines from catastrophic suits.

    The law does not protect one from torts of this kind, even if the fault is vanishingly small.

    Kevin M (25bbee)

  18. You guys know that tort law varies state by state, right? Here’s a list, with their rankings — 1 is least plaintiff-friendly, 50 is most plaintiff-friendly. Sorry, MD, Pennsylvania and Illinois at 45 and 46 are among the worst. Texas is 18, DRJ. http://www.legalreforminthenews.com/2007PDFS/AJP_Directorship_Guide_State_Legal_Climates_6-28-07.pdf

    nk (dbc370)

  19. So basically, Patterico, you’re saying it’s your fault? 😉

    JWB (c1c08f)

  20. Maybe now Senator Schumer will be kore succesfl in getting the terrorism insurance act
    renewed:

    http://www.theguardian.com/us-news/2014/dec/17/us-terrorism-insurance-act-renewal-senate-blocks-coburn

    Many US businesses could find themselves without terrorism insurance in the new year and there are fears big sporting events like the Super Bowl could be cancelled after the Senate failed to extend a government programme that backstops insurers’ losses from terrorist attacks.

    The Senate had been widely expected to extend the Terrorism Risk Insurance Act (Tria), introduced in 2002 when insurers were reluctant to sell coverage for New York office buildings following the 9/11 terrorist attacks.

    It has been renewed twice, in 2005 and 2007, but expires on 31 December.

    The movie could have been shown for one week, without undue risk.

    Or were the insurance companies refusing the write terrorism indurance?

    Sammy Finkelman (8bd44f)

  21. Retiring Senator Tom Coburn (R-Oklahoma) blocked it.

    Coburn, a longtime sceptic of Tria, said his objection was to a separate provision that was tagged on to the extension bill, to set up a regulatory body to supervise insurance agents and brokers. He argued states should be able to opt out.

    Howard Kunreuther and Erwann Michel-Kerjan at the Wharton School of the University of Pennsylvania warned earlier this month that Super Bowl, one of the most popular US sporting events of the year, could be cancelled. However, the National Football League was quick to insist it would go ahead. “The Super Bowl will be played,” Greg Aiello, senior vice president of communications for the NFL, told CNN and ABC News in an email. It is scheduled for 1 February at the University of Phoenix stadium in Glendale, Arizona.

    It will be played at least as long as North Korea doesn’t object.

    Sammy Finkelman (8bd44f)

  22. I don’t want to severely limit tort law, nk. I want people to be able to sue for wrongdoing and to let the courts sort it out. Given events of the past 5-10 years, people should be able to sue a mall or movie theater that prevents them from protecting themselves and provides no protection from armed intruders.

    Alternatively, I guess the law could reinforce the intervening criminal act exception so that it bars a plaintiff from any recovery, except against the criminal perpetrator. I could live with that kind of tort reform but it might have undesirable consequences. For example, if someone negligently hits my car and knocks us both into an intersection where we’re hit by a drunk driver, the DWI driver is an intervening criminal cause so — under this theory — he would be the sole cause of the accident. I’m not sure that’s equitable or desirable.

    I don’t go to movie theaters much anymore or even to malls but I know people who go, especially young people and families. I hate to see them have to give that up. There are only a few ways to keep that from happening in situations like this. First, provide extensive security for our public areas, but that will cost a lot. Be prepared to pay $50 a ticket for movies and go through airport-style screening. Second, expect our federal and state governments to step up police/border patrol security, something that will probably require us to give up more of our privacy. I guess there’s a third option, too, and that’s let people arm themselves … everywhere.

    DRJ (a83b8b)

  23. This would all have been solved had the Republicans been successful in pushing “loser pays” when it comes to lawsuits, back in the 1990s.

    The Dana who isn't an attorney (f6a568)

  24. Patterico,

    Could you post this on facebook? I would like to share it. Great stuff as always.

    Lou Parise (531581)

  25. If Kim Jung-un threatens a terrorist strike at the Super Bowl because they play the Star Spangled Banner and fly the American flag, will the NFL cave and cancel it? After all, wouldn’t they be liable if the North Koreans managed to get their terrorist bomb planted and someone got killed?

    The speculative Dana (f6a568)

  26. Right now, the Supreme Leader (or whatever he’s called these days) and his coterie must be laughing their asses off. “Hot damn, we made a threat, and they caved! What can we threaten next? :)

    The Dana who isn't Korean (f6a568)

  27. John Nolte of Breitbart has posted a very compelling defense of Sony’s decision. For my part, I have declared today as “Post Things that Piss off North Korea Day” on my Facebook and Google+, and shared this link with a few others.

    Tony (2a43e2)

  28. The daughter and her mother enjoy their movie outings very much, DRJ. I’d hate to see that taken away, too.

    On the point of tort law, I would blame the tort lawyers if they were the only ones who elected the judges and legislatures and controlled the jurors’ mindsets. But they are not. And states differ greatly in their legal climates. It’s like blaming drivers for going fast in the Indianapolis 500.

    nk (dbc370)

  29. America’s two biggest enemies: Communism and lawyers.

    CrustyB (69f730)

  30. TL/DR version: I agree with Patterico that the American tort system helped drive Sony’s capitulation. But I’m okay with that.

    Making this movie was an awful idea. I wouldn’t pay to see it, and I doubt I’d voluntarily watch it for free. But de gustibus non est disputandum; YMMV.

    That said, I’ve no doubt whatsoever that to the full extent American law and the First Amendment do apply — and whether and how they do is no trivial legal question, actually, depending on what angle you’re looking at this from — then that law protects the filmmakers’ rights to make the film, and the exhibitors’ rights to show it, from governmental interference. But that’s not at issue here either, really: It would surprise me a great deal if the State Department didn’t lean on Sony Pictures, but (for now, anyway) both Sony and the State Department’s flacks insist that no governmental coercion was involved.

    So let’s put to one side, for the nonce, the whole subject of whether there’s some serious Free Speech principle involved here.

    Instead, let’s take a nicely apt hypothetical that’s indeed suggested by the nature of the risk: Suppose Sony Pictures hadn’t pulled the film. Suppose the film had premiered at Grauman’s Chinese in Los Angeles — into which ISIS crashes a hijacked airliner, killing hundreds.

    Just as there was TONS of civil litigation after 9/11/01 — litigation in both state and federal courts, litigation involving both governmental entities, private companies, and many individuals (not limited to American citizens) — so, too, would there be tons of litigation from this sort of event. Whether you think that’s a good thing or a bad thing or somewhere in between, it’s not really disputable.

    And I’m okay with that. I think it would have been reckless and imprudent for Sony Pictures to release the movie as scheduled, and reckless and imprudent for theaters to show it.

    Yes, that means the bad guys have won a round, or more specifically, that the Norks have won a round against a Japanese corporation and its American subsidiary. I agree it’s a damned shame that the United States and the rest of the free world continue to tolerate such rogue conduct. But the U.S. will not only tolerate it, the U.S. will probably enable it — that’s what Obama’s busy doing with the Iranians, after all — and that state of affairs will continue through at least January 2017 as a consequence of the constitutional electoral calendar. That makes me sad and angry.

    But I don’t fault American tort law for this situation. To the contrary, had Sony and the theaters gone ahead, and had the threatened attack(s) taken place, I have no problem with the reasonableness of their conduct being tested in the civil tort system.

    The fact that someone may have a First Amendment right to be stupid doesn’t mean that tort law should immunize them from the consequences of that.

    Beldar (fa637a)

  31. nk (dbc370) — 12/18/2014 @ 8:51 am

    I know this well; as I have said previously, I have had a front row seat at legal hell for a few families who had the nerve to ask questions of their school board (that later turned into federal charges, while the families are awaiting a resumption of the civil complaint against them after resolution).

    I know very little, but perhaps making an equivalent of a “preliminary hearing” for civil suits might be helpful, giving the opportunity for the defendants to show the ridiculousness of the complaints.

    Unbroken
    is opening on Christmas Day, and I am hoping it does a good job at telling the story.

    MD in Philly (f9371b)

  32. When I write that “it would have been reckless and imprudent for Sony Pictures to release the movie as scheduled, and reckless and imprudent for theaters to show it,” I mean, of course, reckless and imprudent given the clear risks in the world in which we actually live — not the world I wish we lived in, which would also be a world in which the Norks would never dare this sort of aggression.

    Beldar (fa637a)

  33. Theaters, bleh! Theaters are for the disconnected.

    I went to see the new model last night. It is a stand alone theater with a bar, food, reserved seats, waiters to bring refills to your seat and a small audience at premium prices. Interesting experience. Unfortunately, the movie “The Hobbit”, while highly recommended, was awful. Still, that is the theater that I will use for other movies I want to see that way. The tickets are about twice the usual price.

    Mike K (90dfdc)

  34. I meant to add that while Unbroken does not put Japan in a good light, I hope, and expect, that Japan will not threaten an attack.
    Though, in Unbroken it is about 70 years ago, not today like NK.

    MD in Philly (f9371b)

  35. When I posted that item about Sony cancelling everything about “The Interview”, my comment on the post was: “How much insurance did they have on the picture?”

    kimsch (62b801)

  36. Beldar (fa637a) — 12/18/2014 @ 10:18 am

    Suppose the film had premiered at Grauman’s Chinese in Los Angeles — into which ISIS crashes a hijacked airliner, killing hundreds.

    There are two things wrong with that scenario:

    1) North Korea is allied with Bashir Assad, not ISIS.

    2) ISIS doesn’t have this reach.

    Now maybe it could be some other group, like Hezbollah. (although it also is not known to have this reach, but it is closer. When Iran, a North Korean ally, tried an alliance with a Mexican drug gang, they ran into an U.S. informer, who suddenly now had something really good – and safe – to inform on.)

    Another thing – that would prove the existence of an “Axis of Evil.”

    Just as there was TONS of civil litigation after 9/11/01 — litigation in both state and federal courts, litigation involving both governmental entities, private companies, and many individuals (not limited to American citizens) — so, too, would there be tons of litigation from this sort of event.

    Congress stepped in. But SONY would have to worry that it might not be big enough for Congress to step in. And the terrorism insurance program expires on December 31.

    But besides all of that, there is the personal moral responsibility. Even if you could sure the company would be held harmless, either because of Congress or insurance, a lot of people simply wouldn’t have anything like this on their conscience.

    And I’m okay with that. I think it would have been reckless and imprudent for Sony Pictures to release the movie as scheduled, and reckless and imprudent for theaters to show it.

    The only thing is, this is almost ceryainly not real. Less likely to be true than a random phoned in bomb threat. It was the obvious next step for North Korea as the days ticked down and Sony was not showing signs of pulling the film. But he who can launch a cyber attack from across the ocean can not logially be presumed to have an ability to launch a physical attack.

    The fact that someone may have a First Amendment right to be stupid doesn’t mean that tort law should immunize them from the consequences of that.
    Tort law requires caving-in to a criminal threat?

    The problem is the next time it could be something more important than a stupid movie.

    Sammy Finkelman (8bd44f)

  37. Beldar (fa637a) — 12/18/2014 @ 10:42 am

    not the world I wish we lived in, which would also be a world in which the Norks would never dare this sort of aggression.

    Surely he world you wish you lived in is one in which North Korea did not exist.

    Or are we afraid to say that now?

    Sammy Finkelman (8bd44f)

  38. I am skeptical that North Korea is behind this at all.

    Where are they learning to hack? They’ve been isolated for decades.

    If North Koreans did it, then whoever taught them how to do it is behind it.

    Gabriel Hanna (64d4e1)

  39. The law isn’t justice in and of itself, it must be used and applied justly.

    Same thing happened to Fair Use in copyright. Free Republic caused the problem, they were publishing whole articles without linking back to the source, sometimes without even noting the source properly. A few newspapers threatened to sue them, I think WaPo and LAT were the lead ones.

    All they were asking was proper attribution and a link to the story on the original site. Robinson refused their very reasonable request. So they sued, a judge punished FR by setting the 100-word snippet rule for Fair Use, but never said that was universal.

    But after that, any website’s lawyer would recommend adherence to the same snippet rule, even if the use was for education and discussion only, because that was clearly permitted. The easy, precautionary way out.

    In effect, Robinson’s FR obstinate stance cost the public much Fair Use because sites are scared to do otherwise.

    Estragon (ada867)

  40. And now they’ve pulled “Team America: World Police” from the theaters that were planning on screening it.

    Colonel Haiku (2601c0)

  41. I have heard said that it might have been China or Russia acting on NK’s request.

    Note: nk=(Not)NK= North Korea

    nk has never been known to contract a cyber attack on anyone or anything.

    MD in Philly (f9371b)

  42. Maybe Christians and Tea Party types should start to threaten violence. Violence, or the threat of it, seems to be what is rewarded.

    Jack (a742cc)

  43. Jack, that does seem to be the incentive structure. Of course, they would have to actually carry out the threat a few times…

    SDN (33b416)

  44. Well, Jack it’s a thought…
    but there was thing about His Kingdom not being of this world that undercuts that argument.

    MD in Philly (f9371b)

  45. Mr. Finkelman, I’m sorry, I didn’t mean to be so confusing in my hypothetical. Let’s say it’s the Norks who crash the airliner into Grauman’s Chinese. Let’s pretend I didn’t say ISIS (it was actually not what I intended to type anyway). If you want to argue about whether the Norks could hijack a plane successfully, I’m not interested in responding to that argument.

    As for tort law “requires caving to a criminal threat,” Sony Pictures made the decision to pull the film. It did so in substantial part, and pointed to, the fact that the major movie theater chains had decided not to show it.

    It’s fair to say that part of the motivation of both Sony Pictures and the theaters was the possibility of tort liability; that’s the point of Patterico’s post, and I agree. But tort law didn’t, for example, enjoin them from proceeding; no court order or judgment prevented them from ignoring the Norks’ threats and proceeding, respectively, to release or display the film. Rather, they altered their own conduct. They focus on their concern for their customers and employees; Patterico aptly points out that concern for their own prospective tort liability must necessarily have been part of that mix, in the real world.

    Are the Norks taking advantage of the fact that western (not just American) tort law may create consequences which lets them exercise a content-based heckler’s veto over Sony Pictures? Oh, sure they are.

    That’s a reason to change the Norks, though — or more precisely, to change our national conduct in a way that again makes it unthinkable that a rogue nation would undertake such a warlike attack on American businesses and citizens.

    But it’s not a reason to change the tort law system in a way that would immunize Sony Pictures or the movie studies to act rashly and recklessly.

    There’s lots of ways the tort system varies from state to state, as nk points out above, and there’s lots of valid critiques to be made of the current systems. But I’m not interested in reflexive spasms of outrage that ignore the system’s essential role in translating the Rule of Law and community judgment into civil-court final judgments.

    Beldar (fa637a)

  46. Looks like Islamic nutcases just got a blueprint for how to shut down every single bit of popular culture that is remotely uncomplimentary to Islamic beliefs and/or personages. How. . .special.

    M Scott Eiland (8d3966)

  47. That was my thought too, Patrick. The liability is stupendous. Sony is already facing lawsuits from its own employees over the security breaches. And now my SAG friends have gotten emails saying their info was stolen too.

    They really could be bankrupted by this.

    Patricia (5fc097)

  48. “[New Mexico]’s liability laws do not lead to fair
    and predictable results and its Supreme
    Court is led by an activist majority. The
    American Tort Reform Association may soon
    declare New Mexico a Judicial Hellhole.”

    – nk’s ATRA link

    Well, that’s something to consider I suppose.

    Leviticus (9382da)

  49. Ridiculous hyperbole? Nah. For example, the victims of the Aurora shooting are suing Cinemark over an act perpetrated by a lone gunman. The suit has survived summary judgment, meaning it will cost the chain millions whether there is a settlement or a jury trial. You think chains weren’t thinking about that case and similar litigation when they refused to show “The Interview”?

    This bwegs the question: who writes liability statutes to make such suits even possible?

    Michael Ejercito (45f52b)

  50. failmericans like to piss on themselves in front of the whole whirl

    it has nothing to do with tort law

    they’re just cowardly trash anymore

    happyfeet (831175)

  51. I agree with the idea that tort law is too broadly and inconsistently applied to situations like theater shootings. However, the reason the Aurora case could cost millions merely because it survived summary judgment goes well beyond tort law. Attorney fees and expert costs would be what would cost millions if they went to trial and won (as they should), along with fees for obsolete court reporting and other dinosaur/legacy costs that the system blindly imposes. This applies to every civil case. The entire system is vastly overpriced and inefficient, and it’s driven as much by attorney fees well north of $500/hour in many of these cases as much as overbroad tort law. Big Law civil litigation firms billing at neurosurgeon rates has as much to do with runaway legal costs as slimy plaintiff lawyers, and insurers who support this old boy network by passing costs along rather than demanding efficiency and reform are feeding those beasts.

    SocietyIs2Blame (5e7640)

  52. Venezuela, Norway, Britain, Russia, Texas, North Dakota, all on suicide watch:

    http://www.zerohedge.com/sites/default/files/images/user5/imageroot/2014/12/swirlogram%202014.jpg

    Get liquid yesterday.

    DNF (ccccdc)

  53. Gabriel Hanna (64d4e1) — 12/18/2014 @ 12:39 pm

    I am skeptical that North Korea is behind this at all.

    Where are they learning to hack? They’ve been isolated for decades.

    China, of course, which has a lot of experience in hacking. More accurately, some part of the People’s Liberation Army. Which is probably close to running North Korea.

    (There are some hints they may not be too satisfied with Kim Jong Un, and he may be partly or substantially out of their control, because China has been tryng to get close to South Korea.

    And there are some signs that Kim Jong Un is getting some non-disinterested advice – he’s released prisoners, apparently because of the idea, that maybe they are trying to get themselves into the North Korean gulag, so they can later expose it because evenetually they’ll be released. Kim Jon Un seems to think so, so people they might ordinarily imprison – would be defectors – are now let go, and Kim seems to be very afraid that there might be some u.s. action against him. He went wild about that movie probably because he thinks it is aprecursor to something, so he was desperate to make the U.s. back off)

    He also seems to have released some people in time for the climate smmit in Beijing where Obama agreed to that ridiculous deal with China where China agreed to cap carbon emissions at whatever level they might reach in 2030, like as if they are not worried about air pollution anyway. Of course Obama did not give China anything in return, but now they can count China as a good ‘climate citizen.’ and cpntinue with their campaign to reduce greenhose gas emissions to a level, which, by their own projections, will not make any difference unless you subscribe to the “tipping point” theory.

    Sammy Finkelman (6a57b5)

  54. 38. What makes this look like North Korea, is that a few attacks with similiar malware were carried out in South Korea, and the malware has the Korean language in it.

    On the other hand, in the last thing, there is a mistake I would think only somebody in China could make. (Or maybe it is also true in some other languages.)

    The last threatening message said:

    The world will be full of fear. Remember the 11th of September 2001. We recommend to keep youtself distant from the places at that time. (If your house is nearby, you’d better leave.) Whatever comes in the coming days is called by the greed of Sony Pictures Entertainment

    I saw this quoted the same way in a few places.

    Now the word “called” should obviously be “caused”

    This mistake could only have happened if somebody is using a dictionary. Maybe this also happens with Japanese instructions, I don’t know. Korean is said to be vaguely similar to Japanese but it uses an alphabet.

    Gabriel Hanna (64d4e1) — 12/18/2014 @ 12:39 pm

    If North Koreans did it, then whoever taught them how to do it is behind it.

    Well, of course. There is apparently already a known hacking center in North Korea.

    Sammy Finkelman (6a57b5)

  55. 45. Beldar (fa637a) — 12/18/2014 @ 2:58 pm

    …I didn’t mean to be so confusing in my hypothetical. Let’s say it’s the Norks who crash the airliner into Grauman’s Chinese. Let’s pretend I didn’t say ISIS (it was actually not what I intended to type anyway). If you want to argue about whether the Norks could hijack a plane successfully, I’m not interested in responding to that argument.

    Well, Iran is considered to have paid Quaddafi to destroy Pa Am 103, when a plot using Syria wouldn’t work (although I consider that Libya’s role was more limited – they just packed a suitcase) so we can say they might find some way to do this.

    But, in reality, I think this is actually outside their current capabilities, and that’s also the way things seem to be understood by law enforcement.

    The next threat might be more realistic.

    When I said something about tort law “requires caving to a criminal threat,” I meant that it would penalize someone who didn’t.

    That’s a reason to change the Norks, though — or more precisely, to change our national conduct in a way that again makes it unthinkable that a rogue nation would undertake such a warlike attack on American businesses and citizens.

    How do we do it?

    Now I had an idea. OK, don’t show the movie. But hold the movie over Kim Jong Un’s head, like a sword of Damocles, if he ever steps out of line anywhere. That turns the tables on him.

    Just caving in is like paying ransom.

    But it’s not a reason to change the tort law system in a way that would immunize Sony Pictures or the movie studies to act rashly and recklessly.

    Should this ever be considered reckless from a legal standpoint? Would then NOT paying ransom, when the ransom is affordable, be considered a dereliction of duty?

    Sammy Finkelman (6a57b5)

  56. This is exactly why Peter Jackson kept Kim Jong Un out of the LOTR and Hobbit series.

    Corona (bc9be1)

  57. Michael Ejercito (# 49 — 12/18/2014 @ 6:23 pm) asked: “[W]ho writes liability statutes to make such suits even possible?”

    Generally speaking the source of the rights is general negligence law, which isn’t a creature of statutes from legislatures but of the common law, developed by judges through judicial opinions (mostly appellate ones) going back to pre-Revolutionary War British (mostly English) courts.

    Generally speaking, state legislatures have only made tweaks around the edges, but some of them have been hugely important tweaks. For example, legislatures rather than courts often made the shift from “contributory negligence” in which the plaintiff’s own negligence, even if it was a mere 1% cause of an injury, could bar 100% of recovery, to “comparative negligence,” in which the plaintiff’s own negligence generally reduces, but doesn’t eliminate, his right to recovery against a defendant whose negligence was the main cause of the injury.

    “Tort reform” is mostly about legislative attempts to tighten up the margins of these legal theories (including not only negligence but related theories like “products liability” or, in the case of products, breach of implied warranties). There’s been substantial tort reform in some states, some of which would make cases like that arising from my hypothetical more difficult to bring and win. If Texas law were applied to my hypothetical of the Norks crashing a plane into a theater, then Sony and the movie theater would surely point to the Norks as “responsible third parties” who were the sole and exclusive proximate cause of the injury, potentially getting them off the hook under chapters 33 & 34 of the Texas Civil Practice & Remedies Code.

    Companies that do business nationally, though, like Sony Pictures and like the major movie theater chains, have to consider their potential liability in states that have been hostile to tort reform. California, where I deliberately set my hypothetical, is one such.

    Beldar (fa637a)

  58. Generally speaking the source of the rights is general negligence law, which isn’t a creature of statutes from legislatures but of the common law, developed by judges through judicial opinions (mostly appellate ones) going back to pre-Revolutionary War British (mostly English) courts.

    So bascially, judges pulled it out of their collectives asses.

    Michael Ejercito (45f52b)

  59. It dates back to wergild in the Anglo-Saxon tradition and to the Torah in the Judaeo-Christian tradition. I don’t know the Hebrew word for wergild.

    nk (dbc370)

  60. Negligence developed over a long period, several centuries, in fact, like most law.
    Essentially, if there is a nontrivial risk to your customers, then you would be negligent not to take steps to guard against that risk, exact details dependent on the actual degree of risk and potential damage if the risk actualizes, especially if your business depends on them staying in your premises for a period of time.

    kishnevi (294553)

  61. NK, there is no such thing as wergild in Judaism. In fact, the idea is explicitly forbidden by the Torah in two places…one of them being in the covenant with Noah, meaning it is actually forbidden not only to Jews but to all mankind in general.

    kishnevi (3719b7)

  62. By wergild, I meant monetary compensation for a physical harm. Is it forbidden for all injuries or just murder?

    nk (dbc370)

  63. 61. nk (dbc370) — 12/19/2014 @ 6:58 am

    I don’t know the Hebrew word for wergild.

    I’m not sure what wergild means, but you might be thinking of “kopher” as in Exodus 21:30 and Numbers 35:31-32. This is usually translatd “ransom” or “cmmute by ransom” Everthing not only could, but had to be redeemed, except outright murder, or the kind of unintentional murder that made somewone eligible to stay in a city of refuge. In some cases you couldn’t even theoretically impose an identical physical penalty (causing a miscarriage, or where the injured person was a slave) and the Torah specifies what it should be. A slave went free for the most serrious permanent injury and eye – and for the least serious one – a tooth. If he died, the owner was free of liability I assume on he ground that he couldn’t have intended it.

    In later times the whole process of senetence and redemptopon broke down, aand tghe court imposed the monetary penalty from the start,

    The most serious case where the death penalty is imposed, but never carried out, is when someone had an ox that had gored 3 times, and then it happens the 4th time.

    Sammy Finkelman (6a57b5)

  64. Ah, I see.
    For murder, it is forbidden.
    For injuries, it is mandatory, although the Torah does not use a specific word. There are both specific references and the rabbinic interpretation of “eye for an eye” as meaning monetary compensation.

    BTW, the Torah specifically deals with the case of someone hurting a woman in a way that results in miscarriage, and it treats it as a tort, not a homicide. Meaning the Torah does not consider a fetus to be a person.

    kishnevi (3719b7)

  65. Sammy, wergild “man-price” is pretty much what you describe but it included murder and even adultery.

    nk (dbc370)

  66. kishnevi (3719b7) — 12/19/2014 @ 7:34 am

    the rabbinic interpretation of “eye for an eye” as meaning monetary compensation. That’s not just the Rabbinic interpretation.

    That is the underlying assumption.

    In the same way that the U.S. constitution (lehavdil) talks about a power of impeachment, without saying that it exists, and only limits it, all these “compensations” for injuries have that possibility in the background, and it is only limited.

    Sammy Finkelman (6a57b5)

  67. 64. Just for murder. And also for the kind of unintentional murder that would give a relative the right to kill the person who did it if he was not in a city of refuge.

    All other things done because of personal injury are redeemed.

    I think it is possible that originally someone was held in prison, or his life was frozen in some other way, until an agreement was reached.

    The hardest case to reach an agreement would be that of causing a miscarriage because there is nothing hanging over the person who did the damage. There are other kinds of cases too where you can’t hold anything over that person – what about a person who already lost is teeth? – but this is one where that generally would be the case. The amount of liability is whatever the hsband of the woman says – if they can’t agree the court sets the amount. But the whlle idea is to avoid having the court set a monetary amount.

    Sammy Finkelman (6a57b5)

  68. http://www.nytimes.com/2014/12/20/world/fbi-accuses-north-korean-government-in-cyberattack-on-sony-pictures.html?_r=0

    Meanwhile one movie got cancelled, they are thinking of taking North Korea out of the script of another movie, and a 2004 movie, “Team America:World Police” has been pulled from release presumably because it shows a puppet of the previous dictator, Kim Jong Il, being impaled.

    Sammy Finkelman (d22d64)

  69. 58. Corona (bc9be1) — 12/19/2014 @ 5:19 am

    58.This is exactly why Peter Jackson kept Kim Jong Un out of the LOTR and Hobbit series.

    When were they going to be in there in the first place?

    Didn’t Tolkein make the decision to set it in an imaginary place – Middle Earth?

    Now Oz = Australia.

    Sammy Finkelman (6a57b5)

  70. http://www.nytimes.com/2014/12/20/world/fbi-accuses-north-korean-government-in-cyberattack-on-sony-pictures.html

    In criticizing Sony’s leadership for withdrawing the film, Mr. Obama argued that the precedent it set could be damaging — and that the United States could not give in to intimidation. He said that it would encourage other countries to sabotage documentaries, “or news reports they don’t like.”

    Mr. Obama did not pass up the opportunity to take a jab at the insecure North Korean government for worrying about a Hollywood comedy, even a crude one.

    “I think it says something about North Korea that it decided to mount an all-out attack about a satirical movie starring Seth Rogen,” he said, smiling briefly at the ridiculousness of an international confrontation being set off by a Hollywood creation.

    Well, for starters, they could put North Korea back on the list of countries sponsoring terrorism.

    They could also pay SONY $1 million a day nt to show the movie, which contract would end at U.S> govt discretion, and also would end if North Korea does anything out of line.

    Sammy Finkelman (6a57b5)

  71. We don’t need to change tort law.

    Simply pass a bill indemnifying Sony and the theaters for any damages they are found liable for should someone attack a theater while this movie is showing.

    Otherwise we’re just being brave and blustery on someone else’s dime.

    bobby b (cb44ec)

  72. Sometimes, people are just dlcks.

    JD (b6e376)

  73. The Muslim’s once had someone who stated, “Look at you American’s, you have litigated yourselves into being unable to defend yourselves.” A push for Sharia law, unless it’s a protected gender, sexual preference, race or religion it has been litigated by man’s laws into irrelevance.
    I’m waiting for some Pro gay, woman, Black or immigrant movie gets threats then we shall see some liberal hollywood teeth gnashing.
    What is Islam goes after Exodus: Gods and Kings?
    Or Star wars.

    obsidian (33c97d)

  74. obsidian (33c97d) — 12/20/2014 @ 7:56 am

    What is Islam goes after Exodus: Gods and Kings?

    It’s been banned in Egypt (for perhaps obvious reasons) but nobody has gone after it in general.

    It’s actually a bad movie. John odhoretz reviewd it.

    They couldn’t decide whether they wanted to follow the Bible or not.

    Sammy Finkelman (6b5229)


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