Supreme Court Effectively Says There's No Way To Challenge Warrantless Wiretapping

from the but-of-course dept

This probably won't come as a surprise to anyone, but the Supreme Court has completely shot down the ACLU (and some activists and journalists') attempt to invalidate the part of the FISA Amendments Act that "legalized" warrantless wiretapping. As we guessed at the time of the oral hearings, it seemed like it was going to be difficult to convince a majority of the court that the plaintiffs had any standing to complain, since they couldn't show that they had been directly impacted. And, indeed the court ruled 5 to 4 that there was no standing here. So, basically, there is simply no way to challenge the constitutionality of warrantless wiretaps.

Doesn't that seem like a serious constitutional problem? The government can pass laws that it can spy on people in private, and there's no way to then challenge that law. Oh, and if you happen to discover (by accident!) that you've been spied upon the government can just claim sovereign immunity, and that's it. Case closed.

The full ruling is pretty depressing. The court basically says any harm is "speculative," and thus there can't be any standing at all.

We decline to abandon our usual reluctance to endorse standing theories that rest on speculation about the decisions of independent actors.

That's from the majority ruling, written by Justice Alito, and signed by Justices Roberts, Thomas, Scalia and Kennedy. Dissenting were Justices Breyer, Ginsburg, Sotomayor and Kagan. The majority also rejected the idea that merely having to take precautions not to be spied upon without warrants represents a real harm that gives standing:

If the law were otherwise, an enterprising plaintiff would be able to secure a lower standard for Article III standing simply by making an expenditure based on a nonparanoid fear.

Perhaps a legitimate concern, but it still seems somewhat ridiculous that there is no actual way to test the constitutionality of a law that clearly has 4th Amendment consequences.

The dissent pointed out that it's crazy to suggest that the fact that this will be used on the plaintiffs was "speculative," and clearly worried about the implications of such a ruling and what it means for the government's ability to pass these kinds of laws without real judicial review.

The upshot is that (1) similarity of content, (2) strong motives, (3) prior behavior, and (4) capacity all point to a very strong likelihood that the Government will intercept at least some of the plaintiffs’ communications, including some that the 2008 amendment, §1881a, but not the pre-2008 Act, authorizes the Government to intercept. At the same time, nothing suggests the presence of some special factor here that might support a contrary conclusion. The Government does not deny that it has both the motive and the capacity to listen to communications of the kind described by plaintiffs. Nor does it describe any system for avoiding the interception of an electronic communication that happens to include a party who is an American lawyer, journalist, or human rights worker. One can, of course, always imagine some special circumstance that negates a virtual likelihood, no matter how strong. But the same is true about most, if not all, ordinary inferences about future events. Perhaps, despite pouring rain, the streets will remain dry (due to the presence of a special chemical). But ordinarily a party that seeks to defeat a strong natural inference must bear the burden of showing that some such special circumstance exists. And no one has suggested any such special circumstance here.

Consequently, we need only assume that the Government is doing its job (to find out about, and combat, terrorism) in order to conclude that there is a high probability that the Government will intercept at least some electronic communication to which at least some of the plaintiffs are parties. The majority is wrong when it describes the harm threatened plaintiffs as “speculative.”

They go on to point to a series of other cases where standing was granted based on "probable" injury. It also notes a bunch of scenarios that seem ridiculous, but which are logically implied by this ruling. And, indeed, the standard the Supreme Court ruling makes here is a very high bar that is going to deny standing in many cases, and often allow the government to act with impunity in cases where oversight is needed. This is very unfortunate. And, of course, it's unlikely that Congress will do its job and step in to fix this.

Filed Under: 4th amendment, harm, standing, supreme court, warrantless wiretapping
Companies: aclu, amnesty international

To Argue That 'Copyright And The First Amendment Coexisted For 200 Years' Is To Ignore Reality

from the not-today's-copyright dept

Some guy trying to sell his book about how copyright infringement is all a big, bad plot of big, bad companies has a silly and ill-informed article trying to tarnish Aaron Swartz's reputation by making statements about what he believed and what he fought for that have little basis in reality. The article is chock full of confused statements, most of which aren't worth addressing (though, I will note that it is absolutely hilarious that he says that copyright "enabled" Bob Dylan -- given Dylan's famous penchant for blatantly copying of lyrics, melodies and even photographs and claiming them completely as his own).

I do, however, wish to call out one ridiculously misleading claim, which I've seen repeated all too often by copyright maximalists, whenever anyone points out where copyright law and the First Amendment conflict:

First Amendment and copyright have co-existed—without terrible controversy—since the founding of the republic. Our Founding Fathers included a copyright clause in the Constitution (Article I, Section 8, clause 8), and in 1790 approved the first federal copyright law—before the Bill of Rights was even adopted. There are free-speech exceptions to copyright, such as Fair Use provisions, but Swartz's idea that the Supreme Court had some obvious "blind spot" was quite wrong. As described by the Supreme Court, copyright "is the engine of free expression."

The idea that the two coexisted for over 200 years is an exaggeration bordering on an outright falsehood. The original Copyright Act of 1790 applied only to "maps, charts and books" and specifically covered "printing, reprinting, publishing and vending." Oh yeah, and you had to register the work. And the copyright only lasted for 14 years, renewable for another 14 years, if the copyright holder chose to do so. Oh, and we shouldn't forget that it really was only a violation if you printed the entire work. You could copy large segments of the work. So, basically, copyright covered a very small number of works, in very limited ways, for a fairly limited period of time. And, it's probably also worth noting that, at that time, the most successful US publishers weren't printing books by Americans, but rather books from English authors, which were considered public domain under US law.

Compare that to today. Since 1978, copyright in the US now applies to everything new and creative the instant it is in fixed form. That means pretty much everything, from that email you just sent your boss to the lovey-dovey note you direct messaged your significant other on Facebook, is technically covered by copyright. No registration necessary. It covers way more that maps, charts and books. It goes way beyond just printing, reprinting, publishing and vending (all ostensibly commercial activity) to any form of reproduction, distribution, performance or creation of derivative works. And it no longer just applies to the entire work, but also to tiny snippets of the work, with the marginal and extremely limited exceptions put forth by fair use -- which the courts have (incorrectly, mind you) stated is merely a "defense" rather than a "right." Oh, and it lasts the life of the author, plus another seventy years. And, yes, it covers foreign works as well.

These two things are not the same. At all.

Then, combine today's copyright with the massive technological change that is personal computing, mobile devices and the internet, which has created a massive amount of personal communications in digital "fixed" form (thus making much of it copyrightable) and we are talking about two situations that are not even remotely comparable. For most of the history of copyright law, there were very few circumstances under which it would interfere with basic expression and communication. Yet, with the 1976 Copyright Act and the rise of the modern internet / connected device era, nearly all basic communications are now covered by copyright. To suggest that there is no inherent conflict between copyright and the First Amendment today is to be willfully ignorant of reality.

Finally, Swartz was absolutely correct that the Supreme Court has a massive "blind spot" on this issue. It's glaring because the Supreme Court has refused, through multiple cases, to understand the differences described above -- even to the point of suggesting that "the traditional contours" of copyright law have not changed that much over time. If you'd like to read an unfortunately sobering, but incredibly detailed, analysis of the Supreme Court's blind spot on this issue, I highly recommend reading chapter 4 of No Law: Intellectual Property in the Image of an Absolute First Amendment. The authors of the book, David Lange and Jefferson Powell walk through, step by step, every mistake made by Justice Ginsburg in her ruling in the Eldred case, which directly takes on this particular issue. Here is just a brief snippet, though it goes really deep:

Justice Ginsburg's treatment of the plaintiff's threshold claim, that the Court should apply some sort of heightened scrutiny, is nothing less than bizarre. Unless she (and the other members of the majority) failed to see the Act as having any cognizable impact on any constitutionally protected expression at all, a student of the First Amendment cases would expect that the Court's initial response would be to determine which level or form of heightened scrutiny was appropriate, and then apply the proper scrutiny. The opinion takes a different approach, however -- one that appears essentially indifferent as to the reasoning the Court customarily uses in deciding First Amendment claims. Despite acknowledging (a bit later on in the opinion) the plaintiffs' reliance on a case, Turner Broadcasting Systems, Inc. v. FCC, which did employ intermediate level scrutiny, Ginsburg restates their argument as a "plea for imposition of uncommonly strict scrutiny" to the Act, implying (incorrectly) that there is something "uncommonly strict" about the use of intermediate scrutiny in reviewing content-neutral laws. (We presume she was not, more simply but even more strangely, mischaracterizing, as "strict scrutiny" in the doctrinal sense, the plaintiffs argument that Turner -- thus, intermediate scrutiny -- was the appropriate mode of analysis. If we are wrong about this, it would reenforce, in a different way, the air of inattention that hangs over the First Amendment discussion in Eldred.)

Having set up, however inaccurately, the threshold inquiry into the proper level of scrutiny, Justice Ginsburg then immediately drops the issue. Instead, she continues with a number of observations amounting to asserations, each apparently meant to undermine the need for any sort of judicial scrutiny of the Act.

It then goes on to discuss each of these assertions, and break down, very specifically, how they make little, if any sense. There are five assertions in all, but a few more snippets hopefully give you a sense of the issues. In discussing Ginsburg's suggestion that, since copyright law and the First Amendment both came at about the same time and involved the same people, there was no conflict, they point out that merely putting two laws in place at the same time does not automatically solve the issues:

Nor can mere chronological proximity take the place of actual evidence in making claims about the Founders' views. The infamous Sedition Act of 1798 was enacted "close in time" to the First Amendment's adoption, but it has long been settled that the Sedition Act, rather than bein a valuable early interpretation of the First Amendment, was a violation of the amendment. As the Court observed many years ago, "[a]lthough the Sedition Act was never tested in this court, the attack upon its validity carried the day in the court of history." In other words, the founding generation, or many members of it, were capable of making a mistake about the implications and application of the First Amendment and, in the case of the Sedition Act, actually did so, even after a full debate on the constitutional issues. In the First Amendment context, it is clear that the "free speech principles" that the Founders constitutionalized cannot be narrowly defined in terms of the Founders' practices.

Later, they rip to shreds the argument that the courts must defer to Congress on this, combined with the idea that fair use acts as a proper valve to "protect" the First Amendment. The problem there, they note, is that here's the Supreme Court basically saying, "it's not us, it's all on Congress," when the system itself specifically relies on the courts to determine the contours of fair use.

The opinion does not acknowledge, however, that the case law to which it refers also reveals a central attribute of the fair use doctrine, which is that it entrusts the decision about what counts as fair use (and thus may be included in expression) not to the individual (which is the norm ordained by the First Amendment), but to the courts.

No matter how you slice it, the Supreme Court has a very clear "blind spot" to the areas where the First Amendment conflicts with copyright law, and part of that is a complete failure to acknowledge that the two have not actually "co-existed" for centuries, but that a massive change and expansion to copyright law, mixed with the fact that nearly all communications these days are covered by copyright, has created a very real problem -- the problem that Aaron Swartz kept trying to highlight, and which folks like the author of the column seek to ignore.

Filed Under: copyright, first amendment, free speech, supreme court

Justice Sotomayor Doesn't Want Cameras In The Supreme Court Because Americans Won't Understand

from the citizen-mushroom,-reporting-for-inactive-non-duty dept

This adminstration is having a hard time reaching its goal of being the "transparentest place on earth," what with its executive orders, state secrets and a whole lot of "as you were" in reference (deference?) to existing Bush-era policies. To make matters worse, Obama's appointees are proving themselves to be "team players" and blocking out much of the remaining sunlight.

Justice Sotomayor is pitching in with the "new transparency" (now available in black, charcoal and midnight slate!), reversing field on her previously stated opinions on cameras in the courtroom.

At her confirmation hearings in 2009, she said she was in favor of letting citizens see their government at work. “I have had positive experiences with cameras,” she said. “When I have been asked to join experiments of using cameras in the courtroom, I have participated. I have volunteered.”

Apparently, much like the rest of the administration, transparency is a great talking point in theory. In practice, however, it's a very different story.

She was singing a different tune a couple of weeks ago, telling Charlie Rose that most Americans would not understand what goes on at Supreme Court arguments and that there was little point in letting them try.

“I don’t think most viewers take the time to actually delve into either the briefs or the legal arguments to appreciate what the court is doing,” she said. “They speculate about, oh, the judge favors this point rather than that point. Very few of them understand what the process is, which is to play devil’s advocate.”

Now, while Sotomayor may be correct that many Americans don't understand the nuances of the Supreme Court, it's rather insulting to believe this ignorance should preclude them from observing the inner workings. After all, many Americans are ignorant of ins and outs of the entire political process, and yet, no one's suggesting (at least not legislatively) that they have their right to vote revoked. Not only that, but C-SPAN offers wall-to-wall coverage of the legislative process, something few people in their right minds would claim to understand in its entirety, but no one seems concerned that viewers drawing the wrong conclusions will somehow harm that process.

In fact, she doesn't really make an argument as to why cameras shouldn't be allowed into the courtroom. All she does is claim that the proceedings would fly over the heads of viewers. If she's concerned some of the real-time "devil's advocating" will be misconstrued, her fears are misplaced, to say the least. The public can misconstrue the intentions of the justices without a live feed, thank you very much.

And, if it's the public's understanding of the process she's worried about, wouldn't it make more sense to make the process easily accessed? It's pretty hard to increase knowledge without observation. It seems counterintuitive to dismiss the public as ignorant and think you're going to improve this by locking them out.

Unfortunately, it's not just Sotomayor making a 180 when actually faced with making a theoretical situation a reality. Justice Elena Kagan has also reversed her stance.

At her confirmation hearings in 2010, she said video coverage “would be a great thing for the institution, and more important, I think it would be a great thing for the American people.” Two years later, she said she now had “a few worries, including that people might play to the camera” and that the coverage could be misused.

Once again, we have fake fears covering for the government's natural tendency to do its "best" work behind closed doors. C-SPAN has seen its share of "playing to the camera," and yet, the American public is still better off having access to this coverage. And, if Kagan's worried the courtroom coverage might be "misused," she's apparently unaware that anything can be misused, whether it's press releases, public statements, speaking engagements, interviews, C-SPAN footage, etc. Worrying about potential "misuse" is an incredibly weak argument for opacity. Of course it will be misused. But it will also be beneficial to the general public. An open feed shows the whole story, which can then be used to punch holes in the arguments of those who misuse the information.

Oddly enough, the home of free speech and democracy is lagging behind countries like Canada and the UK in terms of cameras in these nations' highest courts.

The Supreme Court of the United Kingdom, which was formed in 2009, allows camera coverage. Last month, Lord Chief Justice Igor Judge, the head of the judiciary for England and Wales, announced that cameras would be allowed in appeal courts starting in October, after judges receive media training.

Lord Judge agreed with Justice Sotomayor, to a point. “I suspect John and Jane Citizen will find it incredibly dull,” he told a committee of the House of Lords. But that did not seem to him a reason to prevent them from trying to make sense of the proceedings.

Arguments in the Supreme Court of Canada have been broadcast since the mid-1990s, and more recently they have been streamed live on the Internet.

Owen M. Rees, the court’s executive legal officer, said the experience had been positive.

“The filming of the Supreme Court of Canada’s hearings has increased the public’s access to the court and its understanding of the court’s work,” he said. “Of course, each court must make its own evaluation of whether introducing cameras in the courtroom would be appropriate.”

So, we've heard the excuses (they're not actually "reasons") presented for keeping cameras out of the Supreme Court, but what's the real reason behind this resistance to cameras in the courthouse? According to Chief Justice John G. Roberts Jr., the problem may be with the justices themselves.

Chief Justice Roberts said he worried about the effect that cameras would have on lawyers and, perhaps more important, on the justices, who may have less self-control than their counterparts abroad.

“We unfortunately fall into grandstanding with a couple of hundred people in the room,” the chief justice said.

If true, then the American public is being cut out of the process in order to save the justices from themselves. This is completely backwards, to say the least. If cameras provoke this sort of response from the highest court in the land, then something needs to be fixed within the court itself. Trying to place the blame on the public for a perceived lack of comprehension or tendency to misuse information is wholly disingenuous. Our Supreme Court can, and should, follow the lead of Canada and the UK and stop treating US citizens as though they have no (comprehensible) horse in this race. 

Filed Under: public, sonia sotomayor, supreme court, video

The Insanely Complex Rules The Supreme Court Requires You To Meet To Ask It To Hear Your Case

from the what's-the-point dept

We recently talked about Aaron Greenspan for his efforts to continue some of the efforts that Aaron Swartz began -- freeing up information to legal documents, in particular. However, back in 2007, we also wrote about Greenspan for being yet another Harvard person claiming that he really invented Facebook, and that Zuckerberg copied from him. We thought those claims were kind of silly. Greenspan did eventually settle with Facebook on a trademark claim (after Greenspan tried to get Facebook's marks cancelled), though last year he tried to claim he had new evidence of copying by Zuckerberg, which all seems fairly silly. As we've noted time and time again, ideas mean little. It's all about the execution. Facebook executed in a way people wanted. Get over it.

That wasn't Greenspan's only long shot legal dispute. He also sued author Ben Mezrich, Mezrich's publisher Random House, and Columbia Pictures, claiming that they all more or less rewrote his own book. Mezrich's book, Accidental Billionaires, became the hit movie The Social Network, and Greenspan claims they both infringe on his own book, which he had trouble publishing, about the origins of Facebook. Greenspan is representing himself (pro se) and hasn't had much luck. The case was easily dismissed by both the district court and the appeals court. The district court reminded Greenspan that you can't copyright facts. I tend to think that Greenspan's legal escapades concerning these things are simply tilting at windmills. There's no case here and he should really move on.

That said, there is a really fascinating tangent to all of this. After the appeals court once again rejected Greenspan's arguments, he went through the process of filing to ask the Supreme Court to hear the case (the chances of this actually happening are very, very, very slim). However, his blog post about his reasons for filing and the insane process that the Supreme Court makes you go through is absolutely worth reading. Basically, he notes that every step of the way there are bizarre, convoluted and ridiculous rules that seem to serve no purpose other than to try to make it frustrating as hell for a normal everyday person to actually appeal to the Supreme Court without hiring an expensive lawyer and/or some really expensive services. Here's just a snippet of a much longer piece, which I highly recommend, despite my feeling that his lawsuits are a complete waste of time.

The first thing to know is that the finished booklet must be 6 and 1/8th inches wide and 9 and 1/4 inches high.

9 and 1/4 inches is a strange number when it comes to page length. Most of us know paper (so long as we're not in Europe or Asia) as being 8 and 1/2 inches wide by 11 inches high, commonly referred to as "Letter" size paper. If you take a standard sheet of Letter paper and fold it over, you get a booklet that is 5 and 1/2 inches by 8 and 1/2 inches. For the Supreme Court's purposes, that for whatever reason doesn't work. (Interestingly, the dimensions of the printed text block easily fit on a Letter sheet of paper, so Rule 33.1 could be said to be designed to mandate slightly bigger margins, and nothing more.)

Well—you might think (as I did)—maybe they sell 12 and 1/4 inch by 9 and 1/4 inch paper in stores (so that when you fold it over lengthwise you get a booklet that matches the Court's required dimensions).

They most certainly do not sell 12 and 1/4 inch by 9 and 1/4 inch paper in stores. It's one of the only things, in fact, that I've ever typed into Google and not found a single relevant result for. However we farm trees to make paper, we do not farm them to make paper of this size. It does not exist in the marketplace.

He goes on to note that the Supreme Court even specifies the weight of the paper, but not the type (which makes a difference in understanding the weight), leading to confusion. Oh yeah, also the filings are encouraged by the Court to be bound together with a specific stitch: saddle stitch. The whole thing is a crazy story -- and while I think this legal filing itself is a waste of time, I really appreciate his sharing the details of some of the insanity it takes to actually file.

Yes, we don't want random crackpots continually inundating the Supreme Court, but it really seems like these archaic rules now serve little purpose other than to make things nearly impossible for anyone who doesn't do exactly this for a living to take part in the process. Basically, it's just like other sets of regulations whose sole purpose really seems to be to prop up a mini industry that has sprung up around them. In this day and age, it seems only reasonable that the rules should be modernized quite a bit.

Filed Under: aaron greenspan, lawsuits, rules, supreme court
Companies: facebook

Supreme Court Set To Hear Case On Whether Or Not Planting Legally Purchased Seeds Infringes On Monsanto Patent

from the please-get-this-right dept

The Supreme Court will be hearing a big patent case tomorrow. We wrote about it back in 2011 when the federal circuit appeals court (CAFC) put forth an absolutely horrible ruling basically saying that a farmer who legally purchased "community seeds" that included (legally) some Monsanto "Roundup Ready" seeds, violated Monsanto's patent. The case is a bit complex, but I'll just rerun my summary from back then:

The farmer, Vernan Bowman, bought official Monsanto seeds and planted his crops. Yet, Monsanto has rules that say you can't re-use "Roundup Ready" seeds, but you can apparently sell "second-generation" seeds to grain elevators for use as "commodity seeds," and doesn't require that there be any restriction on the sale. Bowman later bought a bunch of such "commodity seeds," which included some Roundup Ready seeds, and some that weren't. Bowman was able to determine which of the plants came from Roundup Ready seeds... and then saved those seeds for replanting. Monsanto claimed this was infringement, even though the seeds were legally sold to the grain elevator and then from the elevator to Bowman without restrictions. On top of that, while Bowman had signed an agreement for his original seeds, he did not with this batch (and, indeed, even Monsanto admits he didn't break the user agreement -- just patent infringement for using the seeds).

As we noted at the time, this seemed to be a clear case of patent "exhaustion," which the Supreme Court has supported in the past. Under patent exhaustion, once you sell a "licensed" offering, reselling it further down the supply chain does not infringe on the patent, since the initial purchase was authorized and the patent holder's rights over that specific product have been "exhausted." CAFC said exhaustion didn't apply here because the seeds are "new." That seems like a very troubling interpretation, and hopefully the Supreme Court (yet again) smacks a bad CAFC patent ruling down.

Lots of big farms have come out in support of Monsanto and, tragically, so has the federal government (pdf). Believe it or not, the Business Software Alliance (mostly a Microsoft front) has also sided with Monsanto (pdf), ridiculously arguing that a ruling against Monsanto could "facilitate software piracy on a broad scale." That makes no sense, especially since software "piracy" is a copyright issue, not a patent issue. However, they're arguing that people will interpret this to mean that "temporary additional copies" of software are made all the time (i.e., in RAM) and somehow that leads to piracy. Having read the brief a few times, they never really explain how they make that leap in logic, but they sure do bring up the totally debunked bogus stats about how copyright infringement is costing the industry "billions."

The case really is ridiculous on many levels, but seeing how much firepower has come out in support of Monsanto (basically tons of big companies, lawyers groups and the US government), you can see that a lot of people have a lot of money tied up in keeping this broken system in place. Hopefully the Supreme Court sees through all of that and realizes that this entire case is ridiculous.

Filed Under: patent exhaustion, patents, seeds, supreme court, vernan bowman
Companies: bsa, monsanto

Obama Administration, Once Again, Says $222,000 For Sharing 24 Songs Is Perfectly Reasonable

from the oh-really? dept

This shouldn't be seen as much of a surprise at all, given that the Obama administration previously supported the $1.5 million verdict against Jammie Thomas-Rasset for sharing a mere 24 songs. However, now that an appeals court has reverted back to the original $220,000 ruling (procedural reasons...), and Thomas-Rasset has filed to ask the Supreme Court to hear the case, the Obama administration is back again, saying that there is nothing wrong with $220,000 for 24 songs. The argument is basically what you'd expect. In short: Congress set the statutory rates, the record labels asked for statutory damages, and thus nothing in that range should be considered too high.

The administration does have a point that there is not a real controversy between different circuit courts on the issue at play here, and thus there may not be a need for the Supreme Court to get involved. After the appeals court ruling, we predicted that the Supreme Court would refuse to hear this case, and that still seems likely. That doesn't mean that there aren't problems with the government's analysis. Its focus on using a Supreme Court ruling from a century ago ("Williams") which covered an obscure issue not directly relevant, still seems problematic to me -- but not so problematic that the Supreme Court is likely to weigh in.

Statutory damages are a massive problem with copyright law today. They are way out of proportion with any actual harm, and thus do raise considerable questions, that might amount to interesting Constitutional challenges. That doesn't mean that this case was the right case (in fact, it has many problems). Even so, it's a bit disappointing to see the Obama administration weigh in at all on the issue, giving a de facto thumbs up to massive and ridiculous statutory damages. The basic conclusion of "Congress decides, and that's good enough" is a real problem:

That public interest cannot be realized if the inherent difficulty of proving actual damages leaves the copyright holder without an effective remedy for infringement or precludes an effective means of deterring further copyright violations. The statute reflects a legislative determination of the range of assessments necessary to vindicate those public interests, see 17 U.S.C. 504(c), and Congress’s judgment as to the appropriate amounts is entitled to deference.

If the administration was interested in true leadership in fixing the problems of the copyright system, it would not condone such clearly ridiculous awards. Doing so merely confirms that it remains focused on helping out its friends in legacy industries, rather than reflecting what is actually best for the public.

Filed Under: copyright, jammie thomas-rasset, obama administration, punitive, statutory damages, supreme court

Lawyers For The One Case Where There's Proof Of Warrantless Wiretapping Decide Not To Appeal To Supreme Court

from the sad dept

We've covered the various twists and turns of the Al-Haramain case against the US government for a while. If you don't recall, click that link for some background. The short version is that this is the one and only case where someone has evidence of being a victim of a warrantless wiretap, and that's only because the government screwed up and revealed the evidence by accident. Other attempts to challenge the legality of warrantless wiretapping had all failed, because no one could show "standing" that they'd actually been harmed by the policy. But with the Al-Haramain case, with evidence in hand, and some initial wins, eventually the appeals court shot down the case, saying that the government could just claim sovereign immunity and get out of any lawsuit. In other words, the court gave the federal government free reign to do whatever the hell it wants in violation of the 4th Amendment, and even if it's revealed, gave them a massive get out of jail free card. I'm sure that won't be abused at all...

Now, the lawyers representing Al-Haramain have decided that they will not appeal the case to the Supreme Court, on the belief that the "current composition" of the court works against them. In other words, they believe that the current Justices on the court would side with the appeals court in rejecting their case, and then that would be precedent across the country (unless Congress changed the law, which it's unlikely to do). The "hope" then is that somehow, down the road, someone else somehow gets evidence that they, too, were spied upon without a warrant, and it happens in a different district, and (hopefully) that circuit's appeals court rules differently, setting up a circuit split. Oh, and that by the time that happens, the "composition" of the court shifts enough that the court actually respects the 4th Amendment. In other words: none of this is likely. Instead, the feds retain their ability to spy on people without warrants in direct violation of the 4th Amendment.

In other words, bye-bye 4th Amendment. It was nice knowing you.

Filed Under: 4th amendment, al-haramain, privacy, supreme court, warrantless wiretapping

How The Supreme Court Helped Stomp Out The Public Domain

from the sad-things dept

We already wrote about how the Center for the Study of the Public Domain recently published their list of things that should have entered the public domain in the US this year, but didn't. But that's not the only reason to lament. 2012 was particularly painful for the public domain for a separate reason, as the Center noted in a lament about the shrinking public domain, with a harsh, but completely justified, condemnation of the ridiculous Supreme Court decision in the Golan case, which tragically was decided the very same day as the SOPA/PIPA protests. Just as the public was telling DC the importance of not strengthening copyright law, the Supreme Court announced that there was no problem at all with Congress taking works out of the public domain and putting them back under copyright by force.

This decision marked a significant departure from the “bedrock principle” that once works enter the public domain, they remain there, free for anyone to use and build upon. The law at issue in Golan – Section 514 of the Uruguay Round Agreements Act – “restored” copyright to foreign works that had entered the American public domain for any of three reasons: the author failed to comply with copyright formalities, the U.S. did not have copyright relations with their country of origin at the time of publication, or they were sound recordings fixed before 1972. Golan was different from Eldred because while the works in Eldred were on the brink of entering the public domain, the works at issue in Golan were already in the public domain, and conductors, educators, film archivists and others were legally using them.

In upholding the law, the Golan majority explicitly endorsed the position that the public has no rights to the public domain. None. Under U.S. law as declared by the Court in this case, copyright is now officially “asymmetric.” While those who have copyrights enjoy vested, legally protected rights, “[a]nyone has free access to the public domain, but no one, after the copyright term has expired, acquires ownership rights in the once-protected works.” The majority could not seem to imagine that the public had rights other than “ownership” over a free, collective culture. In a dissenting opinion, Justices Breyer and Alito asked “Does the [Constitution] empower Congress to enact a statute that withdraws works from the public domain, brings about higher prices and costs, and in doing so seriously restricts dissemination, particularly to those who need it for scholarly, educational, or cultural purposes – all without providing any additional incentive for the production of new material?” Their answer was “No.”

We were just discussing recently if the government taking away copyright could be considered an illegal "takings" issue under the Constitution. For those who support such an argument, I can't see how they can, at the same time, then argue that works seized from the public domain and locked away under copyright aren't a similar "taking." And, yet, the Supreme Court basically argued that Congress can take away the public domain at will. This is horrifying for a variety of reasons:

What are the limits on this decision? Could Congress recall the works of Shakespeare, Plato, Mozart and Melville from the public domain, and create new legalized monopolies over them? It is hard to imagine anything more contrary to the First Amendment – would privatizing Shakespeare by government decree abridge freedom of speech? – or to the attitudes of those who penned the Copyright Clause that limits Congress’s power to create new exclusive rights. Yet if one reads Golan, one searches in vain for any limiting principle on Congress’s actions. In this decision, Justice Ginsburg’s majority opinion effectively denies the public domain any meaningful Constitutional protection. Under the U.S. Constitution, says this case, the public domain is “public” only by sufferance. It may be privatized at any moment, at the whim of the Congress and without violating the Bill of Rights.

In our opinion as legal scholars, this decision is shockingly cavalier in its dismissal of the importance of the public domain to free speech and to the progress of science and culture. It is also, again in our opinion, unsupported by the text, structure and history of the Constitution. Indeed, it seems flatly contrary to the dictates of the First Amendment and the limitations imposed by the Copyright Clause. Yet its message, however lamentable, is clear. If the public domain is to be protected in the United States, it is not going to be through the Constitution, but through reasoned argument, democratic pressure and legislative action. The public domain will be “public” only so long as the public demands it.

And this is one of the many reasons why it's important for the public to understand the importance of this stuff. It's become obvious that Congress and the Supreme Court don't understand it at all.

Filed Under: copyright, golan v. holder, public domain, supreme court

Jammie Thomas Asks Supreme Court: How Much Is Too Much For Copyright Infringement?

from the here-we-go dept

Back in September, we wrote about the latest in the Jammie Thomas-Rasset saga, in which an appeals court had ruled that the original (of three) district court rulings in her case, in which she was told to pay $9,250 per song was perfectly reasonable. As we noted, this was more or less a procedural thing, in an effort to get to the main event: a challenge on the Constitutionality of ridiculously high statutory damages for copyright. And... that's where we are now. Thomas-Rasset has petitioned the Supreme Court to hear her appeal on exactly that question:

Is there any constitutional limit to the statutory damages that can be imposed for downloading music online?

The argument, as when it has been brought up earlier, is that such huge fines represent a 5th Amendment due process problem, as the awards simply are so far out of line with any reason. The filing runs through a brief history of the recording industry's fight against file sharing (amusingly quoting from the movie The Social Network to make the point that the recording industry has seen better days).

Thomas-Rasset makes the case that the three different verdicts, with three different crazy amounts from three different juries highlights the problems with today's statutory damages, and how disconnected they are from reality:

Statutory damages imposed in this way are unpredictable, unconstrained, and equally as punitive as punitive damages; the jury’s role in imposing them is even more divorced from finding facts, from deciding what happened, than it is in imposing punitive damages. The order-of-magnitude difference between the verdicts in this case, $222,000 in the first trial, $1,920,000 in the second trial, and $1,500,000 in the third trial, demonstrates this. The verdicts are unpredictable and, in a deeper sense, arbitrary; they are not tied to any fact or rationale that justifies them, that explains why the law imposes this particular penalty on this particular defendant.

And it's that arbitrary nature that becomes a Constitutional problem under the 5th Amendment:

Thomas–Rasset contends that the award of statutory damages against her violates the Due Process Clause because it is tied not to the actual injury that she caused or other features of her conduct, but to the injury caused by file sharing in general. Like punitive damages, statutory damages are imposed not only to compensate the plaintiff, but also to deter the defendant and others from engaging in similar conduct in the future. While this general approach, punishing one offender to deter others, is constitutional within limits, even gross limits of fair retribution for an individual’s conduct, due process limits the extent of the punishment. This Court recognized as much in reviewing awards of statutory damages as early as a century ago.

In Williams, decided in 1919, a railroad challenged statutory damages of “not less than fifty dollars nor more than three hundred dollars” imposed for overcharging two passengers by 66 cents in violation of Arkansas’s regulation of railroad rates. 251 U.S. at 63–64. The railroad argued that such statutory damages “contravene due process of law” because “the penalty is arbitrary and unreasonable, and not proportionate to the actual damages sustained.” ... This Court held that the Due Process Clause “places a limitation upon the power of the states to describe penalties for violations of their laws” and that due process is denied “where the penalty prescribed is so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.”

And, of course, they claim that this case clearly shows that statutory damages are completely disproportionate:

Under Williams and the other early cases, the award of statutory damages in this case is unconstitutional because it is “grossly excessive” and “wholly disproportioned to the offense.”.... $222,000 for 24 songs that would have cost $24 on iTunes is absurd. Nor can $222,000 be justified by the kinds of other features of the offense identified in Williams.

There's a lot more in the full filing, but it also takes on things, like the claims that the record labels should be able to get more from Thomas-Rasset, because they have to cover for other files sharers. That doesn't fly:

a defendant may be punished for his own similar acts only, Campbell, 538 U.S. at 422–23 (“A defendant’s dissimilar acts, independent from the acts upon which liability was premised, may not serve as the basis for punitive damages. A defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business.”), and only for the injury that he inflicted on the particular plaintiff in the case, not for any injuries that he inflicted on nonparties, Phillip Morris USA v. Williams, 549 U.S. 346, 353 (2007) (“the Constitution’s Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties or those whom they directly represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the litigation”). These cases preserve the civil nature of a case notwithstanding the imposition of a punishment: the case remains between two parties, and the civil punishment must be justified with reference to the acts between those parties, not acts in the world in general.

There are a number of legal arguments... and one appeal to emotion, which comes off as a bit weak, though you never know how well some of those might play out:

But lawyers should care about these cases for an entirely different reason: This is not just. It is unfair, it is not due process, for an industry to sue 12,500 people and threaten to sue 5,000 more, wielding a statute for which they lobbied, under which they can threaten hundreds of thousands or millions of dollars in statutory damages, where the only way to resist is through modern, complex, expensive federal process, so that the only reasonable choice is to pay the settlement and be done. That’s extortion, not law. We cannot govern that way.

I am skeptical that this will result in a ruling in favor of Thomas-Rasset (even if the Supreme Court grants cert -- which I'd say is possible, but unlikely). However, perhaps I'll be pleasantly surprised. This is an absolute long shot, especially given a Supreme Court that, while skeptical of patent expansion, has shown a bizarre willingness to let Congress continue to stretch and change and expand copyright law at every turn.

Filed Under: copyright, due process, jammie thomas rasset, statutory damages, supreme court

Supreme Court Will Finally Say If Genes Are Patentable

from the can-they-punt-around-the-question? dept

This isn't a huge surprise, but after a long series of intermediary steps, the Supreme Court has finally agreed to weigh in on whether or not genes are patentable. For a bit of background on gene patents, back in 2010, a district court ruled in the Myriad Genetics case that gene patents were invalid, noting that they "are directed to a law of nature and were therefore improperly granted." A nice, clear and useful statement.

But, of course, it was just the first step in a long process. Myriad took the case to the appeals court for the federal circuit (CAFC), the notoriously patent friendly appeals court. The only surprise here was that the US Justice Department actually said it agreed that genes shouldn't be patentable (showing a potential disagreement within the administration, as the US Patent Office was not happy). End result? CAFC decided genes are patentable because they're "separate" from your DNA.

Then, before the Supreme Court could review that case, it ruled in a different case, the Prometheus v. Mayo case, involving medical diagnostics, which it ruled to be unpatentable subject matter. As expected, soon after that, the Supreme Court told CAFC to reconsider the gene patent case in light of its ruling in the medical diagnostics patents case. In August, CAFC said that it still believed genes were patentable.

And, of course, everyone fully expected this to end up before the Supreme Court again, which it will. Of interest, there were two questions appealed to the Supreme Court: (1) are human genes patentable and (2) did CAFC make a mistake in its application of the Myriad medical diagnostics patent ruling to this case -- but the Supreme Court has only agreed to review the first question: are human genes patentable? This is both good and bad. As we've seen all too often lately, the Supreme Court has bent over backwards to come up with ways to make very, very narrow rulings (see: Bilsky), effectively punting on the bigger questions, and leaving a ton of uncertainty in the market. By directly having just a single question over the patentability of genes on the table, hopefully it can issue a crisp and clear ruling (preferably rejecting those patents!)

The potential downside, though, is that if it does somehow find genes patentable, then it would mean that the CAFC ruling stands. Considering that we found the CAFC's reasoning troubling, this could be a larger problem. It would mean that CAFC can get away with dancing around the Myriad standard for rejecting patents, to leave in place potentially dangerous and ridiculous patents on elements of nature. This also means that we won't get a broader ruling on how to apply the Myriad standards, which actually might have been useful for rejecting software or business method patents. Either way, the most important thing at this stage is that the court outright reject gene patents.

Filed Under: diagnostic patents, gene patents, patents, supreme court
Companies: myriad genetics