Supreme Court Says It's OK For Border Patrol Agents To Kill Mexican Citizens As Long As They Die In Mexico

from the precedent-controls-bullets-right-up-until-they-cross-an-imaginary-line dept

Border Patrol agents kill a lot of people, most of them citizens of another country. For years, agents have been able to open fire on people in moving vehicles and [checks Congressional report] people throwing rocks at them. New guidelines were handed down by the agency in 2014 following an outside investigation of the Border Patrol's use of force. The investigation contained many recommendations that could have resulted in fewer killings, but the Border Patrol rejected the conclusions and the suggested fixes.

So, the killings continue. And not much is being done to stop them. The Ninth Circuit Court of Appeals stripped qualified immunity from a Border Patrol agent who fired at leaast 16 bullets across the border at a 16-year-old resident who was allegedly throwing rocks at him. Ten of them hit the teen, killing him. The court ruled this was basically murder, something clearly not covered by qualified immunity. The Fourth Amendment governs what US government employees do. It makes no difference that the victim was not a US citizen.

That finding is likely to be struck down if it makes its way to the Supreme Court. A similar case involving the killing of Mexican resident by a Border Patrol agent standing on US soil has just received the Supreme Court stamp of approval.

Fifteen-year-old Sergio Adrian Hernandez Guereca was shot and killed by Border Patrol agent Jesus Mesa, Jr. as he played with friends in a culvert along the US-Mexico border. According to Hernandez's survivors, he and his friends were running back and forth across the culvert to touch the US border fence before running back to the Mexican side of the culvert. Agent Mesa claimed the teen was "involved in an illegal border crossing attempt" and "pelting" him with rocks.

The shooting resulted in an international incident. The Mexican government wanted the agent extradited to face murder charges in Mexico, the country where the murder occurred, even if the bullets originated on the US side of the border. The US government, on the other hand, decided Agent Mesa had done nothing wrong - that his deadly actions were clearly justified by the presence of rocks and/or border-crossing attempts.

Hernandez's parents sued. The Fifth Circuit took two swings at the case (once at the Supreme Court's request) and both times refused to extend the scope of Bivens to cover an incident where a government agent on the US side of the border shot and killed someone on the other side.

The Supreme Court likewise has refused to read Bivens as supporting a lawsuit against US government employees on behalf of a citizen of a foreign country. The Supreme Court believes doing so would upset the delicate balance currently preserved by Mexican outrage and US government indifference. From the ruling [PDF]:

Both the United States and Mexico have legitimate and important interests that may be affected by the way in which this matter is handled. The United States has an interest in ensuring that agents assigned the difficult and important task of policing the border are held to standards and judged by procedures that satisfy United States law and do not undermine the agents’ effectiveness and morale. Mexico has an interest in exercising sovereignty over its territory and in protecting and obtaining justice for its nationals. It is not our task to arbitrate between them.

This sounds positively Solomonic until you read the next paragraph of the ruling, along with some context that isn't discussed in the ruling.

In the absence of judicial intervention, the United States and Mexico would attempt to reconcile their interests through diplomacy––and that has occurred. The broad issue of violence along the border, the occurrence of cross-border shootings, and this particular matter have been addressed through diplomatic channels. In 2014, Mexico and the United States established a joint Border Violence Prevention Council, and the two countries have addressed cross-border shootings through the United States-Mexico bilateral Human Rights Dialogue. Following the Justice Department investigation in the present case, the United States reaffirmed its commitment to “work with the Mexican government within existing mechanisms and agreements to prevent future incidents.”

That 2014 date is key. That's the same year the Border Patrol was given new use-of-force guidelines while simultaneously rejecting the findings of an outside investigation that said agents used their weapons far too often in situations that either didn't require deadly force (rock throwing) or created new dangers (shooting at moving vehicles). The US government also cleared Agent Mesa of any wrongdoing, which suggests it has zero desire to hold its own people accountable for extrajudicial killings of foreign citizens -- something that can be easily accomplished by firing bullets from the US side of the border into Mexico.

In conclusion, the Supreme Court recommends trying not to get shot on the wrong side of the border.

Congress has repeatedly declined to authorize the award of damages against federal officials for injury inflicted outside U. S. borders. For example, recovery under 42 U. S. C. §1983 is available only to “citizen[s] of the United States or other person[s] within the jurisdiction thereof.” The Federal Tort Claims Act bars “[a]ny claim arising in a foreign country.” 28 U. S. C. §2680(k). And the Torture Victim Protection Act of 1991, note following 28 U. S. C. §1350, cannot be used by an alien to sue a United States officer. When Congress has provided compensation for injuries suffered by aliens outside the United States, it has done so by empowering Executive Branch officials to make payments under circumstances found to be appropriate. See, e.g., Foreign Claims Act, 10 U. S. C. §2734. Congress’s decision not to allow suit in these contexts further indicates that the Judiciary should not create a cause of action that extends across U. S. borders either.

The 5-4 majority says too much is at stake in terms of border security and international relations to come to any other conclusion. Since it's not going to legislate from the bench, US government employees can kill people in other countries without fear of being held personally responsible for their rights violations until Congress steps in -- something it's obviously in no hurry to do.

The concurrence, written by Justices Thomas and Gorsuch, is mainly annoyed the Court wasted time discussing a Congressionally-created escape hatch for federal officers and suggests tossing the Bivens doctrine altogether, further limiting lawsuits brought against federal officers/agents for Constitutional violations.

The dissent, however, points out this isn't an extension of Bivens across the border. While Hernandez may have died in Mexico, the bullets were fired by an officer on United States soil.

Rogue U. S. officer conduct falls within a familiar, not a “new,” Bivens setting. Even if the setting could be characterized as “new,” plaintiffs lack recourse to alternative remedies, and no “special factors” counsel against a Bivens remedy. Neither U. S. foreign policy nor national security is in fact endangered by the litigation. Moreover, concerns attending the application of our law to conduct occurring abroad are not involved, for plaintiffs seek the application of U. S. law to conduct occurring inside our borders.

Even the government concurred a Bivens action could be brought against Agent Mesa if one key element had been satisfied.

The complaint states that Mesa engaged in that very conduct; it alleged, specifically, that Hernández was unarmed and posed no threat to Mesa or others. For these reasons, as Mesa acknowledged at oral argument, Hernández’s parents could have maintained a Bivens action had the bullet hit Hernández while he was running up or down the United States side of the embankment.

"Wrong place, wrong time" shouldn't be the determining factor.

The only salient difference here: the fortuity that the bullet happened to strike Hernández on the Mexican side of the embankment. But Hernández’s location at the precise moment the bullet landed should not matter one whit.

[...]

Mesa’s allegedly unwarranted deployment of deadly force occurred on United States soil. It scarcely makes sense for a remedy trained on deterring rogue officer conduct to turn upon a happenstance subsequent to the conduct—a bullet landing in one half of a culvert, not the other.

If Bivens is neutered, there's nothing left for plaintiffs. And the agency benefitting from this already does next to nothing to deter misconduct by its agents.

Regrettably, the death of Hernández is not an isolated incident. Cf. Rodriguez, 899 F. 3d, at 727 (complaint alleged that border agent fired 14 to 30 bullets across the border, killing a 16-year-old boy); Brief for Immigrant and Civil Rights Organizations as Amici Curiae 26–28 (describing various incidents of allegedly unconstitutional conduct by border and immigration officers); Brief for Border Network for Human Rights et al. as Amici Curiae 8–15 (listing individuals killed by border agents). One report reviewed over 800 complaints of alleged physical, verbal, or sexual abuse lodged against Border Patrol agents between 2009 and 2012; in 97% of the complaints resulting in formal decisions, no action was taken.

Zero accountability, blessed by two government branches. Here's the third branch doing the same thing. The message it sends is this: if you're going to kill a Mexican citizen, make sure they're still in Mexico. And that message means the case coming up from the Ninth Circuit is going to give another Border Patrol agent a free pass on taking a foreigner's life.

Filed Under: bivens, borders, cbp, jurisdiction, mexico, shooting, sovereignty, supreme court, us

Supreme Court Asked To Tell Cops That Consenting To A Search Is Not Consenting To Having Your Home Destroyed

from the domicile-made-furtive-movements dept

Five years ago, an Idaho police department destroyed a woman's house to end a standoff with her dog. The Caldwell PD -- after having been given permission (along with a house key) to enter the home to see if a suspect was in the home -- decided this meant the Shaniz West had given them permission to fire grenade after tear gas grenade into the house before sending in the SWAT team to confront the family dog.

Exhibit A:

Shaniz West sued, stating that this 10-hour "standoff" that rendered her house uninhabitable for three months was a violation of her Fourth Amendment rights. The district court agreed, finding the officers being sued could be held accountable for destroying her home, rather than just using the house key she had given them.

Unfortunately, the Ninth Circuit Court of Appeals disagreed and granted the officers qualified immunity. According to the Appeals Court [PDF], this was an appropriate use of police force, given the circumstances. Mainly it was that the circumstances were unique enough, the court could find no way to say this was unreasonable. Without controlling precedent, the officers were allowed to escape the consequences of their ridiculous, house-destroying actions.

Here's the Court's summary, which sounds like it was written by a cop PR shop.

The panel held that assuming the consent was voluntary and defendants exceeded the scope of the consent by shooting tear gas into the house, they were still entitled to qualified immunity. The panel held that given that defendants thought they had permission to enter plaintiff’s house to apprehend a dangerous, potentially armed, and suicidal felon barricaded inside, it was not obvious, in the absence of a controlling precedent, that defendants exceeded the scope of plaintiff’s consent by causing the tear gas canisters to enter the house in an attempt to flush the suspect out into the open. Officers Seevers and Winefield were therefore entitled to qualified immunity on this claim.

"Causing tear gas canisters to enter the house." It's like the canisters were just hanging around outside and the SWAT team's reasonable appearance on the lawn gave the canisters permission to hurtle themselves through the nearest windows and doors.

There was no suspect to flush out. The person they were seeking had vacated the residence before officers stopped Shaniz West and threatened her with arrest if she didn't "consent" to a search of her house. What West actually consented to was far different than what the officers ended up doing, as the dissent pointed out.

The majority adopts an entirely implausible contrary reading of West’s consent, one a “typical reasonable person [would not] have understood by the exchange between the officer and the suspect.” Jimeno, 500 U.S. at 251. Because West “never expressed a limitation as to time, place within the house, or manner of entry,” the majority concludes that her consent that officers could “get inside” permitted a violent initial attack on her house with toxic objects. Maj. Op. at 13. In so concluding, the majority supposes that someone who permits law enforcement officers to “get inside [her] house” while handing over a key consents to the officers not entering the house but instead lobbing dangerous objects, such as tear gas canisters—or stones or bombs, for other examples—into the house from the outside. It further presupposes that, in providing consent to entry, a resident must preemptively forbid actions no one would guess are contemplated by the commonsense understanding of the articulated consent. That is not the law.

What this court finds reasonable for officers (destroying a house) does not align with what any "reasonable" non-cop would willingly permit when consenting to a search of their residence.

In concluding that the officers performed a search consistent with West’s consent, the majority does what no court has before—it holds that a “typical reasonable person” consenting to an entry to look for a suspect could be understood by a competent police officer as consenting to damage to his or her home so extreme that renders it uninhabitable for months.

There is still no finding that destroying a house while performing a consensual search is a violation of rights. The Ninth punted on drawing the line following this case, leaving officers free to "cause canisters to enter" houses in the future when performing searches for suspects.

The Institute for Justice wants some precedent set. It's asking the Supreme Court to rule on this issue. The petition [PDF] seeks a ruling that would prevent officers from dodging lawsuits from citizens rendered homeless by consensual searches.

QUESTION PRESENTED

Whether an officer who has consent to “get inside” a house but instead destroys it from the outside is entitled to qualified immunity in the absence of precisely factually on-point caselaw.

It's a valid question. It's far more valid than the Ninth's conclusion: that consent to search is consent to destruction. Even given the circumstances of this case -- a potentially armed felon who was supposedly suicidal -- the officers had options they normally didn't have during warrant service: specifically, permission to enter the home and a key that unlocked the front and back doors.

Instead of using the key to enter the house (or at least attempt to -- the front door also had a chain securing it, but it's not like a bunch of tear gas grenades were going to dislodge the chain), the cops decided to call in the SWAT team. They left the premises, met with the SWAT team, came up with a plan and did a couple of dry runs and three hours later, decided to start the "search."

It wasn't until 4.5 hours later the key was even tried. It unlocked the back door, but redundantly because the glass had already been shattered by tear gas canisters, allowing officers to reach inside and unlock the door.

As the petition points out, there's no reason to find precedent that directly aligns with law enforcement's actions here. It should have been plainly apparent to the officers that their actions were unreasonable.

The dissent did not purport to find a “closely similar case[ ] to guide the clearly established law inquiry[.]” App. 27. Instead, it found no such case was necessary because any competent officer would have understood he could not lawfully destroy a house simply because he had consent to enter it.

This should be obvious. If it were a car being searched, a person's consent to a search would not justify officers towing the vehicle to place away from the public and detonating it just because of the slim possibility something inside it might pose a threat to officers.

Hopefully, the Supreme Court will take a look at this case, rather than decide it's up to the lower court to set a bunch of conflicting precedent -- or far more likely, continue kicking the QI can down the road. Giving officers permission to search your house should never mean giving them permission to leave you with no place to live.

Filed Under: 4th amendment, consent, destruction, idaho, search, shaniz west, supreme court, swat, swat teams

Big News: Supreme Court To Hear Google v. Oracle Case About API And Copyright

from the this-is-important dept

Some big news out of the Supreme Court this morning, as it has agreed to hear the appeal in the never-ending Oracle v. Google lawsuit regarding whether or not copyright applies to APIs (the case is now captioned as Google v. Oracle, since it was Google asking the Supreme Court to hear the appeal). We've been covering the case and all its permutations for many years now, and it's notable that the Supreme Court is going to consider both of the questions that Google petitioned over. Specifically:

1. Whether copyright protection extends to a software interface.

2. Whether, as the jury found, petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.

As you may recall, the Supreme Court refused to hear Google's appeal back in 2015, which was just focused on the first question above, regarding whether or not an API was copyright-eligible. So it's quite interesting to see that it will now review that question. As you may recall, after the Supreme Court refused to review that point, the case went back to the district court where Google's use of some of the Java API was deemed to be fair use, which was a funky sort of way for the jury to recognize that there never should have been copyright on the API in the first place.

To me, as I always point out in this case, the key element will be getting the Supreme Court to recognize that an API is not software. Oracle and its supporters keep trying to insist that an API and executable code are one and the same, and I worry that the Supreme Court will not fully understand the differences, though I am sure that there will be compelling amici briefs trying to explain this point to them.

You never can tell how the Supreme Court will come down on these issues. The court has been tragically bad on copyright over the past few decades (with a few exceptions). But it's also repeatedly smacked down bad rulings from the Federal Circuit, which is where this case is coming from. So perhaps that additional skepticism over CAFC's nutty interpretation of the law will help them review this issue carefully.

Filed Under: android, api, copyright, fair use, java, supreme court
Companies: google, oracle

Attorney Who Sued Grindr Responds Extremely Poorly To The Supreme Court's Rejection Of Her Section 230 Lawsuit

from the upside-is-no-one-will-be-suing-Twitter-over-this-attorney's-veiled-threat dept

The Herrick v. Grindr case [um] ground to a halt on October 7th, as the Supreme Court refused to grant cert. The lawsuit -- and its attempt to undermine Section 230 immunity -- is dead, relegated to the pile of also-rans which have attempted to get a US court to rewrite this very important section of the Communications Decency Act.

Not that there was anything decent in the events leading up to the lawsuit. Matthew Herrick's ex-boyfriend used Herrick's information to create a fake Grindr profile and sent more than 1,200 men to Herrick's home and workplace over the next several months. Herrick sued Grindr, alleging that the company failed to prevent his ex from abusing the service to harass him.

The case was tossed on appeal, with the Second Circuit Court finding in favor of Grindr and its invocation of its Section 230 immunity. The party at fault here was Herrick's ex-boyfriend, but it was Grindr Herrick chose to take to court. The case was not argued well. The allegations contained suppositions that were pretty much impossible to reconcile, as Cathy Gellis pointed out in her post on the lawsuit. Herrick tried to dodge Section 230 immunity by claiming Grindr either handed out his geolocation info or some sort of bug left it exposed. This was the basis for his negligence claims. But none of that makes sense.

For it to be true Grindr would need to not only still be tracking him (even as an ex-user) but then, for some unknown reason, somehow unite the location data of the actual Herrick person with the fake Herrick profile. Herrick tried to argue that the first part was likely, citing for instance Google's location services continuing to track users after they'd thought it had stopped. But even if it were true that Grindr had continued to track him, it would be really random to associate that data with any other account he didn't control. From Grindr's point of view, his real account and the fake account would look like two completely separate users. Sure, Grindr could have a bug that mis-associated location data, but there's no reason for it to pick these two completely different accounts to merge the data from. It would be just as arbitrary as if it mixed up his data with any other Grindr account.

The most likely reason strange men kept showing up at Herrick's home and place of business was because his ex-boyfriend knew these locations and could send that info to Grindr users. That meant a third party was supplying the information that resulted in Herrick's harassment, not Grindr itself.

The denial of Supreme Court cert was tweeted by Section 230 legal scholar/law prof Eric Goldman. As readers of Techdirt are aware, there's seldom a Section 230 case Goldman (or his co-bloggers) don't cover, even if only briefly. Goldman's tweet of the Supreme Court denial was nothing but the reporting of the facts with the tiniest bit of commentary. Here's what Goldman said (links removed for clarity):

It's not the least bit surprising, but today SCOTUS denied cert in Herrick v Grindr, a significant #Sec230 defense-favorable ruling.

Here's how Herrick's lawyer responded to Goldman's innocuous tweet:

If you can't read/see it, the tweet reads:

Sure would be a shame if somebody misused a dating app to send men to this guy's home as happened 1200+ times to our client, Matthew.

Here's Scott Greenfield's take on this bizarre and inappropriate response by Herrick's attorney:

Goldberg’s reaction to Goldman’s twit appears to be a call to make him suffer the same harm that her client suffered, to implore some unduly passionate nutjob to e-personate Goldman so that he should become the target that Herrick was at the hands of his ex-boyfriend. As sick and twisted as Herrick’s ex might have been, this effort to target Goldman for attack, for harm, was even worse.

Eric Goldman’s attention to this case was as a lawyer, a law professor. While Herrick surely suffered terrible harm, it was at the hands of his ex-boyfriend. Goldberg, a lawyer, would be playing the ex-boyfriend to Goldman, the academic, not because he did anything to her or her client, but because his view of the law differed from hers.

Now, it could be Carrie Goldberg meant to do nothing more than point out Goldman's belief that platforms should not be held responsible for speech such as hers. If so, the point was made in the worst possible way. I doubt Goldberg wants Goldman to be harassed by strangers simply for disagreeing with her legal arguments, but a straight reading of her tweet doesn't really lend itself to charitable interpretations.

Also, it's odd for a self-proclaimed "victim rights'" attorney who goes around constantly insisting that her entire focus in life is protecting those who have been harmed... to then directly and explicitly wish harm on someone who merely commented (accurately) on a lawsuit. It becomes difficult to take her position seriously when she suggests the same sort of tactics she claims to fight against.

But this is the unfortunate side effect of arguments against Section 230 immunity. It's become increasingly popular to blame the immunity for the deeds and words of third-party users. This, of course, makes no sense. But the alternative is to recognize users are responsible for their own conduct and content and that unfortunate truth simply won't suffice when there's lawsuits to be filed, grandstands to be stood upon, and error-laden op-eds to be composed for the New York Times.

Greenfield points out the ridiculousness of this newly-popular Section 230 hatred, which has somehow managed to draw in acolytes from all political persuasions. (We'll try to forgive Greenfield's use of "safe harbor" [like the DMCA] rather than "immunity" [which is what it actually is].)

[F]or some of those on the Herrick’s side of the fence, there is no concern for Section 230 safe harbor, which is seen as nothing more than a protection that allows websites and apps to avoid the responsibility they would impose to protect their victims from harm. This is a view gathering support from both the right and left, both of which abhor the idea that they can’t dictate the content of the web to suit their demands and desires.

Ironically, they may share a hatred of this safe harbor, but their notions of who would be protected if it were gone are opposite. Neither seems to have the self-awareness to grasp this distinction, and both believe that they will own the future such that their vision of authoritarian control will prevail.

Lots of people want Section 230 immunity weakened or destroyed. Everyone who does thinks the internet will be better without it. But if it's gone, the services and platforms Section 230 opponents seem to believe will become better will actually become more restrictive or cease to exist. And crude reactions like Goldberg's are exactly the sort of thing that will disappear fastest if platforms can be sued for things their users have said.

Filed Under: carrie goldberg, eric goldman, matthew herrick, section 230, supreme court
Companies: grindr

Top Oracle Lawyer Attempting To Gaslight Entire Software Community: Insists APIs Are Executable

from the oh-come-on dept

Last week, the Solicitor General of the White House weighed in on Google's request for the Supreme Court to overturn the Federal Circuit's ridiculously confused ruling in the Oracle/Google case concerning the copyrightability of APIs (and whether or not repurposing them is fair use). Not surprisingly, as the Solicitor General has been siding with Oracle all along, it suggests that the Supreme Court not hear the case. Of course, it does so by completely misrepresenting what's at stake in the case -- pretending that this is about whether or not software source code is copyright-eligible:

This case concerns the copyrightability of computer code. To induce a computer to perform a function, a person must give the computer written instructions. Typically, those instructions are written in “source code,” which consists of words, numbers, and symbols in a particular “programming language,” which has its own syntax and semantics. The source code is then converted into binary “object code”—ones and zeros—that is readable by the computer.

It is both “firmly established” and undisputed in this case that computer code can be copyrightable as a “literary work[].” 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 2A.10[B] (2019). Section 101 defines a “computer program” as “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” 17 U.S.C. 101. And various Copyright Act provisions recognize that a person may own a copyright in a “computer program.”

Except... that's not what this case is about. Even remotely. Literally no one denies that software source code is subject to copyright. The question is whether or not an Application Programming Interface -- an API -- is subject to copyright. As we've been saying from the beginning, the most frustrating thing about this entire case is that you have non-technically savvy lawyers and judges simply refusing to comprehend that an API is not software. It's not executable code. It's not "source code" for software. An API is a set of specifications for allowing the access of data, an application, or service. It's a "method of operation," which is simply not subject to copyright law. Indeed, back in 1996, the Supreme Court ruled in Lotus v. Borland that a user interface to a computer program is not subject to copyright under Section 102(b) as the interface is a "method of operation."

In the Solicitor General's brief, they wipe this away by insisting that the ruling in Lotus v. Borland is different because that was about an interface, whereas this case is about source code.

The Federal Circuit’s construction of Section 102(b) in this case does not conflict with those decisions. See 14-410 U.S. Br. 19-22. In Lotus, the First Circuit invoked Section 102(b) to find that the arrangement of menu commands presented to a software user was an uncopyrightable “‘method of operation’” for the software at issue. 49 F.3d at 815-818. The case did not address the copyrightability of computer code, and the First Circuit has subsequently acknowledged, consistent with the decision below, that Section 102(b) codifies the idea/expression dichotomy.

Right. But this case also does "not address the copyrightability of computer code." Because it's not about computer code.

While it's no surprise that the Solicitor General has now gotten this wrong, what was a little surprising was that Oracle's lead lawyer in this case, spent half the weekend acting like a common Twitter troll, gaslighting the entire software community on Twitter, making repeatedly false claims about APIs, and then attacking anyone who pointed out that she's flat out wrong by accusing them of being Google shills.

Annette Hurst, prior to this nonsense, was fairly widely respected intellectual property lawyer and a big time partner at Orrick, one of the largest law firms in the world. She's been involved in some big copyright cases in the past, such as the famed Mattel v. MGA case (she was on the right side of that one) and also in the important Kirtsaeng case in which she again represented the correct side.

However, when it comes to the Oracle case, she seems to jump in to argue things that are blatantly ignorant of how software actually works. You may recall, after the jury in the district court found that Google's use of the Java APIs were fair use, she laughably insisted that it would kill open source software because it meant software source code couldn't be opened up any more. Except, once again, she was totally confusing an API with executable software code.

Years on, and she's still not just confused, but actively misrepresenting things. Famed and well-respected litigator and law professor Mark Lemley called out the Solicitor General's "indefensible" statement that Lotus v. Borland does not conflict with this ruling, and Hurst responded dismissively:

But, again, she's focusing on the wrong thing. "Software is protected by copyright." Well, duh. No one disagrees. This case is not about that. It's about whether or not an API is protected by copyright. But Hurst keeps conflating executable software code and APIs. And while expert after expert called her out on this on Twitter, she just kept digging in deeper, variously calling any critic a Google shill or, perhaps worse, insisting that APIs are executable code.

This is not just wrong, it's head-slappingly, stupidly wrong. And every single reply to Hurst are people telling her it's wrong in so many different ways.

As more and more people called out this nonsense, literally her only claim was to argue that anyone taking the other side must have been funded by Google.

What's doubly ironic here is that the link she puts in that post, is to a shadowy non-profit whose only role in life is to write up laughingly misleading reports accusing tons of people of being Google shills based on shoddy (to downright incorrect) research. It has been forced to run multiple corrections to its bad reporting. And, the best part is: for an organization that claims its sole purpose is to shine a light on what it claims is Google's secret funding... the Google Transparency Project refuses to name a single one of its own donors. Though, there is one who has taken credit: Oracle. The very company which has probably paid Hurst's employer enough money for her to buy a few very nice homes just on this case alone.

Hurst may be a great copyright lawyer, but she doesn't know shit about what an API is, and, incredibly and unfortunately, has convinced the Federal Circuit that an API is no different than software. She may succeed in convincing the Supreme Court that as well, as she's apparently convinced the Solicitor General. None of that makes it right however. And her going around parading her ignorance and attacking those who actually know what the fuck they're talking about concerning the difference between an API and executable code is a disgrace.

This is not something that one can just say it's a difference of opinions over. We can disagree over whether or not APIs should be covered by copyright. That's an opinion. We can disagree over whether or not Google's copying of an API should be considered fair use. We can disagree over what we think the state of copyright should be. But what no one can deny is that an API is not executable code. And yet, Hurst continues to argue it and (ridiculously) has convinced some courts of this blatantly incorrect thing, which is helping her client get the opinions it wants on the other things above. And that's despicable.

Filed Under: annette hurst, apis, cafc, copyright, interfaces, methods of operation, software, solicitor general, source code, supreme court
Companies: google, oracle

If You Lament The State Of Politics Today, Lament The Loss Of Aereo

from the lessons-for-Locast dept

Disclaimer: I did a teeny bit of legal work on a teeny part of Aereo's defense against the litigation onslaught seeking to obliterate it. But that's not why I think the Supreme Court's decision enabling that obliteration was terrible. On the contrary, it's why I wanted to work on the defense at all, because it was always apparent that trying to use copyright to crush Aereo was a terrible idea that would have terrible consequences. And time has, of course, born this prediction out.

It had never made sense why all these TV stations would be suing Aereo in the first place. After all, isn't the thing that TV stations always want a larger viewership? With a larger viewership they can charge more for ads and make more money. So a service that helps them get that larger viewership (and at no cost to themselves) seems like something they should actually be glad to have. In any case, it was certainly quite odd to see them resent something that helped connect them with bigger audiences beyond what their broadcast signal could manage.

And it made even less sense for a public television station like WNET to be part of any of these lawsuits. Commercial profit was never supposed to be its goal. Instead, pledge drive after pledge drive has always begged the public for the funds necessary to show its programming. Yet there it was, now trying to eradicate a service that helped people actually watch that programming. Which necessarily prompts the question of why anyone should ever bother to give money to WNET ever again if it was so bound and determined to limit the number of people who could benefit from it.

Anyway, while the fight against Aereo made no sense, and the US Supreme Court decision killing it made even less, the result is that today we live in a world without it, where the reach and influence of local TV stations has effectively been damned to the geographical limits of their signal strength. And this pointless and artificial limitation has had a cost.

Because think about what has been happening in recent elections: results end up hyper-localized, with impenetrable divisions between red and blue states, urban and rural regions, large markets and small, etc. At least in the story of the country mouse and city mouse they both got to visit each other and learn what each other's lives were like. But thanks to the Supreme Court, now it is so much harder for Americans everywhere to learn about what life is like outside the areas where they live.

Aereo helped build connections between these places by overcoming the barriers imposed by distance. Instead of people only being able to see the broadcasts they could receive on their own antennas, it gave them a window into other communities by allowing them to essentially rent antennas in these other places and experience the broadcasts aimed for people there. Certainly if they'd rented an entire house in these other places there would have been no issue with them using its antenna to watch these broadcasts. So it hardly follows that it should be illegal if they simply saved the enormous expense of moving to that other place and instead only rented the antenna. (Which, despite the Supreme Court's technical misunderstanding about what Aereo did, is exactly what Aereo – and, for the past year or so, now Locast – actually did.)

Especially not when, as described above, it would have been good for those stations. And especially not when it also would have been good for the nation. It does us no good to remain little regional enclaves unable to find common ground between each other. Sharing in each other's broadcast media would go a long way to bridging those geographically-enforced cultural gaps. Indeed, it would seem to vindicate the very goals of copyright, to promote the progress of arts and sciences, to ensure that local insight could be efficiently exchanged among these regions. Instead, however, the Supreme Court, in its decision to contort copyright law to effectively ban Aereo, doubled-down on the physical restrictions curtailing that exchange with artificial legal barriers that can only serve to enforce the effects of that distance upon the national electorate. And our democracy has been paying the price for this decision ever since.

Perhaps things can be different with Locast. While too new to have been able to have had as much impact on national political culture as a mature service would have had by now, since last year it has tried to thread the confusing needle the Supreme Court set out for these sorts of antenna-rental services. As the courts now stand to review the legal questions they raise again, one can only hope the courts better understand this time around the public interest in knowledge exchange that's at stake, which copyright law is supposed to advance, not smother.

Filed Under: broadcast tv, copyright, divisions, local news, supreme court
Companies: aereo, locast

Supreme Court To Review Whether Or Not You Can Copyright State Laws

from the please-don't-fuck-this-up dept

Last fall we were happy to see the 11th Circuit rule that, obviously, a state's official laws couldn't be covered by copyright. As you may recall, the case involved the state of Georgia and Carl Malamud's Public.Resource.Org. Malamud has spent years helping to make the law more readily available to the public -- and has been on the receiving end of a bunch of lawsuits for his troubles. The case in Georgia had some slightly odd facts in that the state said that its laws were freely available, but it contracted out to a private company, LexisNexis, to produce an "annotated" version of the law. LexisNexis then got a copyright on the annotations, which it then assigned to the state. Then -- and this is the important part -- the state released the "Official Code of Georgia Annotated" (OCGA) as the only "official" version of the laws. When new laws were passed, they were specifically written to be included in the OCGA. While the lower court said that the annotations could be covered by copyright, and thus Malamud publishing a free online version was infringing, the 11th Circuit easily reversed. It didn't even say something more narrow, like arguing that the republishing was fair use. It said you can't copyright the law at all. Period. Full stop.

... the work was created through the procedural channels in which sovereign power ordinarily flows -- it follows that the work would be attributable to the constructive authorship of the People, and therefore uncopyrightable.

The state of Georgia asked the Supreme Court to review and, perhaps surprisingly, Malamud also asked the Supreme Court to take the case, noting that while the 11th Circuit ruling was persuasive, it was not binding across the rest of the country, and it would certainly be nice for the Supreme Court to just rule, flat out, that you can't copyright laws. Of course, the flip side of this is that if the Supreme Court ruled the other way, that would be really bad.

Well, we're going to find out, as the Supreme Court has agreed to hear the case. The Supreme Court has a bit of history being, well, wacky when it comes to copyright cases, so this really could go any way. But what the court decides is going to be important. I fear a result where the court sides with Georgia, leading other states to sense a "revenue opportunity" in locking up their own laws. However, hopefully, the court recognizes the basic absurdity of using copyright on any set of laws, even when it includes annotations from third parties.

Filed Under: 11th circuit, carl malamud, copyright, georgia, laws, official code of georgia annotated, ogca, public domain, supreme court
Companies: lexisnexis