With Stephen Breyer's Retirement, The Supreme Court Has Lost A Justice Who Was Wary Of Overly Burdensome Copyright

from the and-that's-too-bad dept

Whatever the (I'd argue unfortunate) politics behind Stephen Breyer's decision to retire as a Supreme Court Justice at the conclusion of this term, it is notable around here for his views on copyright. Breyer has generally been seen as the one Justice on the court most open to the idea that overly aggressive copyright policy was dangerous and potentially unconstitutional. Perhaps ironically, given that they are often lumped together on the overly simplistic "left/right" spectrum -- Justices Breyer and Ginsburg -- presented somewhat opposite ends of the copyright spectrum. Ginsburg consistently was a voice in favor of expanding copyright law to extreme degrees, while Breyer seemed much more willing to recognize that the rights of users -- including fair use -- were extremely important.

If you want to see that clearly, read Ginsburg's majority opinion in the Eldred case (on whether or not copyright term extension is constitutional) as compared to Breyer's dissent. To this day I believe that 21st century copyright law would have been so much more reasonable and so much more for the benefit of the public if Breyer had been able to convince others on the court to his views. As Breyer notes in his dissent, a copyright law that does not benefit the public should not be able to survive constitutional scrutiny:

Thus, I would find that the statute lacks the constitutionally necessary rational support (1) if the significant benefits that it bestows are private, not public; (2) if it threatens seriously to undermine the expressive values that the Copyright Clause embodies; and (3) if it cannot find justification in any significant Clause-related objective.

(As an aside, the book No Law has a very, very thorough breakdown of how the majority ruling by Justice Ginsburg in that case was just, fundamentally, objectively wrong.)

That said, Breyer wasn't -- as he was sometimes painted -- a copyleft crusader or anything. As Jonathan Band details, Breyer's views on copyright appeared to be extremely balanced -- sometimes ruling for the copyright holder, and sometimes not. Indeed, to this day, I still cannot fathom how he came to write the majority opinion in the Aereo case, which used a "looks like a duck" kind of test. In that case, the company carefully followed the letter of the law regarding copyright, and the end result was that, even by playing within the lines, because it felt like some other service, the court was fine with declaring it to be a different kind of service (even though technically it was not). We are still suffering from the impact of that case today.

So, while I didn't always think that Breyer got copyright cases correct, he was -- consistently -- much more thoughtful on copyright issues that any other Justice on today's court, and that perspective will certainly be missed.

Filed Under: copyright, stephen breyer, supreme court

US Courts Realizing They Have A Judge Alan Albright Sized Problem In Waco

from the forum-selling dept

We've written a bit about Judge Alan Albright, the only judge in the US district court in Waco, Texas. Judge Albright, a former patent litigator, decided that, upon taking the bench, he'd become the friendliest court for patent cases in the entire country. He even went around advertising that patent plaintiff's should file there and they've taken him up on it in droves. Since he's the only judge in the district, all the cases get assigned to him and, at last count, more than 25% of new patent cases are all going to him. He's so busy with patent cases he had to hire a former patent troll lawyer as a magistrate judge to help him out.

He's also, somewhat famously, been pissing off the notoriously pro-patent appeals court for patent cases, the Federal Circuit, by refusing to rule on transfer requests to more appropriate districts, while making the process for patent defendants more expensive and cumbersome. It got so bad that even the generally pro-patent Senator Thom Tillis sent a couple of letters to Supreme Court Chief Justice John Roberts (who oversees the court system) and to the USPTO, about Albright's "forum selling."

It took a little while, but the Administrative Office of the US Courts, has finally responded to the letter sent by Tillis (and Senator Pat Leahy) to Justice Roberts, noting that it appears to be somewhat aware of the problems of Judge Albright.

From a long-standing national policy perspective, the Judicial Conference strongly supports the random assignment of cases and the notion that all district judges remain generalists.... Random case assignment is used in all federal courts and operates to safeguard the Judiciary’s autonomy while deterring judge-shopping and the assignment of cases based on the perceived merits or abilities of a particular judge. It bears mentioning that in September 2021, I submitted my Final Report to Congress pursuant to Section (1)(e) of the Patent Pilot Program in Certain District Courts Act, Pub. L. No. 111-349 (2011) counseling against extending the Patent Pilot Program due, in part, to the Judiciary’s longstanding position on random case assignment and to help ensure that all district judges remain generalists.

While admitting that district courts, including the ones in the Western District of Texas "have wide latitude to establish case assignment systems," the Administrative Office of the Courts still seems to recognize that there's a problem in Waco and will explore if anything can be done:

Given these varied divisional case assignment policies as well as the concerns that you have raised, I have asked the Committee on Court Administration and Case Management, which has jurisdiction on matters affecting case management, to consider these issues and any recommendations that may be warranted.

That may sound rather muted, but it's still quite noteworthy. The US court system is generally resistant to changes, and just acknowledging that it understands the concerns of Tillis and Leahy, and will explore options already suggests that others in the federal judiciary recognize just how sketchy and corrupt-appearing Judge Albight's courtroom looks right now.

Furthermore, in his year end report on the state of the federal judiciary, Justice Roberts explicitly calls out Albright's activity (though he's too chickenshit to note that it's just Judge Albright who's the problem):

The third agenda topic I would like to highlight is an arcane but important matter of judicial administration: judicial assignment and venue for patent cases in federal trial court. Senators from both sides of the aisle have expressed concern that case assignment procedures allowing the party filing a case to select a division of a district court might, in effect, enable the plaintiff to select a particular judge to hear a case. Two important and sometimes competing values are at issue. First, the Judicial Conference has long supported the random assignment of cases and fostered the role of district judges as generalists capable of handling the full range of legal issues. But the Conference is also mindful that Congress has intentionally shaped the lower courts into districts and divisions codified by law so that litigants are served by federal judges tied to their communities. Reconciling these values is important to public confidence in the courts, and I have asked the Director of the Administrative Office, who serves as Secretary of the Judicial Conference, to put the issue before the Conference.

The Committee on Court Administration and Case Management is reviewing this matter and will report back to the full Conference. This issue of judicial administration provides another good example of a matter that self-governing bodies of judges from the front lines are in the best position to study and solve—and to work in partnership with Congress in the event change in the law is necessary.

This was one of only three specific topics he called out, so it seems pretty clear that he's well aware of how Albright has made a complete mockery of his courtroom.

Filed Under: alan albright, federal judiciary, forum selling, john roberts, patent trolls, patents, supreme court, waco

Supreme Court Takes A Pass On A Chance To Firmly Establish A Right To Record Police Officers

from the I-guess-try-to-exercise-your-rights-in-circuits-where-they're-respected dept

After taking some positive steps towards trimming the growth of qualified immunity it had itself encouraged for years, the Supreme Court decided to reverse course. Two more cases on the court's "shadow docket" were sent back to the appellate levels with instructions to reverse the stripping of qualified immunity from government employees accused of rights violations.

Note that refusing to grant qualified immunity does not guarantee a win for the plaintiff. All the removal of this immunity does is allow the court to consider more facts and place unresolved questions in front of a jury… you know, the sort of thing courts are supposed to be doing fairly often. Qualified immunity invocations short circuit the process, allowing courts to arrive at conclusions without further fact-finding by giving law enforcement officers the benefit of a doubt.

More bad news from the nation's highest court has arrived. As Radley Balko puts it in his editorial for the Washington Post, the Supreme Court has chosen to abdicate its obligations to the Bill of Rights. (non-paywalled link here)

The Supreme Court, having created the problem of qualified immunity to shield police from being held liable for their misconduct, keeps refusing to fix it.

This week, the court declined to review an especially outrageous ruling by the U.S. Court of Appeals for the 10th Circuit involving a Denver man who was detained for recording a traffic stop, then had his computer confiscated and searched.

The Tenth Circuit Court of Appeals clearly blew that decision earlier this year. Despite multiple appellate courts having established or upheld a First Amendment right to record police officers, the Appeals Court decided there wasn't enough circuit precedent to put Denver, Colorado police officers on notice that arresting a man and seizing his device simply because he was recording them was unconstitutional.

Additionally, the Tenth Circuit declared the cops could not have known this was unconstitutional despite having received specific training from their police department that explicitly said citizens have the right to record police and should not be prevented from doing so, much less arrested for doing so. The objective standard the Appeals Court applied said reasonable officers with this specific training would not have known that contradicting that training would result in rights violations.

The Supreme Court's rejection of this case is inexcusable. It's pretty difficult to generate a solid case that persuasively argues for an establishment of a right by the nation's top court. This was one of the better ones. The Supreme Court had a chance to clearly establish a right to record government employees but chose to ignore it. That means cops in this circuit -- even ones who have received explicit training advising them there's an assumed right to record -- can continue to harass and arrest people for filming them.

Radley Balko is right: this is an abdication of its responsibility to uphold the rights of citizens and act as a check against the government's desire to see those rights curtailed.

Filed Under: 10th circuit, civil rights, free speech, recording police, shadow docket, supreme court

After Taking A Couple Of Steps Towards Trimming Back Qualified Immunity, The Supreme Court Regresses To The Mean

from the continuing-to-redefine-'judgment-proof' dept

The Supreme Court spent decades making it all but impossible for citizens to successfully sue law enforcement officers for violating their rights. The Supreme Court created the doctrine of "qualified immunity" nearly 40 years ago and has spent most of the intervening years honing it into a nearly impenetrable shield for officers who violate rights.

But over the past year, the Supreme Court seemed to recognize it had perhaps placed too many limits on lower courts, leading them away from examining the case at hand and towards affirming QI defenses because no precedential case had identical facts: i.e., excessive force deployed at 6 pm on a Tuesday is completely different than excessive force deployed at 7 am on a Wednesday, etc. And if no previous facts aligned with the current facts, courts had no reason to examine the facts in front of them, steering them away from creating new precedent that would put officers on notice that violating rights on a Wednesday morning also wouldn't be tolerated.

The past twelve months have been somewhat anomalous for the Supreme Court. It has reversed three appeals court decisions awarding qualified immunity. The three reversals were important. The Fifth Circuit was home to two of the reversals -- a circuit notorious for its aggressive protection of law enforcement officers. But the lack of an official opinion suggests the Supreme Court is in no hurry to limit qualified immunity's coverage.

The latest shadow docket release [PDF] from the Supreme Court contains two more unofficial orders on qualified immunity decisions. But these go the other way, reversing appellate decisions that stripped officers of their qualified immunity shield. (via Reason)

In one case (via the Ninth Circuit), police officers reporting to a call from two teens about their mother's drunk ex-boyfriend menacing them in their home arrested Ramon Cortesluna. According to the arrestee, his rights were violated when Officer Daniel Rivas-Villegas knelt on his back with his knee while he was already face down on the ground. The Ninth Circuit said this was excessive force, citing another case where an unarmed arrestee was seriously injured when he was restrained face down by an officer's knee.

The Supreme Court, however, says the Ninth Circuit's cited precedent isn't on point enough. The cited case dealt with an unarmed person and a noise complaint. This case deals with a man who had a knife on him and was allegedly trying to saw his way into a room where the two frightened teens who made the 911 call had barricaded themselves. The similarity is the knee to the back as a restraint method and the Supreme Court says that's simply not enough.

The second rejection is headed back to the Tenth Circuit. In this case, a woman called the cops on her ex-husband, who was drunk and wandering around outside of her house. Officers arrived and followed the man into the garage, where the man grabbed a hammer and held it over his head, ignoring orders to drop the tool. When he refused, the officers on the scene shot and killed the man. The entire confrontation was captured on the officers' body cameras.

The Tenth Circuit said no immunity because the officers' decision to follow the man into the garage created the danger they responded to by killing him. The Supreme Court says the Tenth Circuit is wrong. Not only that, it says it shouldn't even need to be having this discussion in the first place.

We need not, and do not, decide whether the officers violated the Fourth Amendment in the first place, or whether recklessly creating a situation that requires deadly force can itself violate the Fourth Amendment. On this record, the officers plainly did not violate any clearly established law.

These may have been close cases -- far from the seemingly clear violations of rights detailed in earlier reversals by the Supreme Court. But what's said about these cases is alarming. Rather than build on previous reversals in which the Supreme Court said lower courts were far too specific in their determinations of what had be "previously established," the Supreme Court rolls everything back, restating its mandate that cases on point are all that matters, not the egregiousness of the violation being discussed nor any determinations about what officers should "reasonably" be expected to know about the Constitution.

Worse, it makes it clear the Supreme Court is still solidly behind its own doctrine and wishes to shield as many officers as possible from additional fact-finding or actually being subjected to the apparent indignity of a jury. It seems the Supreme Court believes all lawsuits against law enforcement officers are frivolous until proven otherwise and that, at the very worst, government employees should only have to suffer through a couple of rounds of motions before walking away from allegations of rights violations.

Filed Under: 10th circuit, 4th amendment, 9th circuit, civil rights, police, qualified immunity, supreme court

The Night The United States Supreme Court Cancelled Law

from the obviating-law-school dept

Last week's news about Justice Barrett fretting about the Supreme Court being seen as partisan calls to mind the old joke about a defendant on trial for murdering his parents and begging the court for mercy because he's an orphan. If you've created the mess you find yourself in, you have no one to blame but yourself.

Nevertheless, there is credence to her protest (which other justices have since echoed) that the way the Court has acted recently is not actually "partisan." After all, Republican-appointed Justice Roberts has been frequently joining the Democrat-appointed justices of late, which we wouldn't expect if political loyalties were all that were at the root of all Supreme Court actions. As Justice Barrett herself suggests, to understand what the Court has been doing of late, we need to look deeper:

“To say the court’s reasoning is flawed is different from saying the court is acting in a partisan manner,” said Barrett[.] “I think we need to evaluate what the court is doing on its own terms.”

So let's do what she suggests and evaluate the Court's actions on its own terms. Because what we'll find is even worse than partisanship.

Justice Barrett argues that what the public is seeing is merely a difference in "judicial philosophies," as if the prevalent splits among justices are but two sides of the same coin. But what we are seeing from this Court is hardly a case of the justices simply calling balls and strikes differently according to their respective vantagepoints. Instead we are seeing the majority deploy a "judicial philosophy" willing if not eager to erode the previously stalwart foundations upon which American law has historically depended. It is a philosophy of little more than legal nihilism. And it represents a profound change in the nature of the Court of enormous if not cataclysmic consequence.

Trouble has been brewing for some time now, with the majority's increasing use of its "shadow docket" to wield a heavy hand on legal questions without any meaningful opportunity for briefing or substantive argument by anyone affected. Instead of carefully weighing the pros and cons of the particular issue raised by the case before them in an open and transparent way, as the Court traditionally has on matters of such significance, they are instead making ad hoc and inconsistent procedural decisions behind the scenes, despite the fact that these sorts of decisions are having huge practical effect and impacting people's rights just as much they would in any case brought before them for their full and reasoned review.

This problematic practice culminated a few weeks ago with its rushed, unsigned, barely two-page, late-night order in Whole Women's Health v. Jackson, when the majority declined to exercise its procedural powers to stop Texas's SB8, a facially unconstitutional law that offended the Constitution in almost every way a law possibly could, from coming into force. As a result, rather than upholding the Constitution, or protecting the public from a wayward state actor, or even acting consistently with its own principles of jurisprudence, that slim majority, with only a few, ill-supported sentences, casually abdicated the Court's role as a protector of liberty and ruled instead as arbitrary, unaccountable autocrats.

There are at least two key reasons why the majority's behavior here is so deserving of such excoriation. The first relates to the specious way the majority misapplied procedural rules as convenient cover for producing substantively consequential outcomes, apparently deliberately, although even if it had been unintentionally it would still be a problem. Procedural rules exist to help ensure that justice can be meted out timely and fairly. While it's true that in this case the Supreme Court found itself in the position of having to clean up the mess caused by the Fifth Circuit's own procedural hijinks – which had abruptly, and dubiously, snatched the Texas statute away from the district court's established review process and thus made it practically impossible for it to act before the law was supposed to go into effect – the Supreme Court's astonishing refusal to take corrective action is what made this review ultimately impossible. And it did it by turning those very same procedural rules designed to help administer justice into outright obstacles obstructing it, opting instead to hide behind them with nothing more than a brief prevarication explaining why these rules somehow, and suddenly, had made it, the most powerful court in the land, unusually powerless to prevent a clearly unconstitutional law from going into effect.

In failing to act the Court also unilaterally overruled the long-standing judicial preference in American courts for preserving the status quo when there is a reasonable chance of a law potentially causing an improper injury before the matter has been able to receive appropriate review. And not only did the Court ignore that concern, but it all but invited those injuries to occur. The statute in question had basically walked up to several areas of settled precedent protecting constitutional rights and proverbially punched them all in the nose, openly daring the Supreme Court to come after it. Yet, shockingly, the majority declined to.

This refusal to defend the Court's own precedents was yet another way the majority's behavior was aberrant and destructive. Precedent is what gives the law stability, because once the Court has spoken we can all know where we stand. Sure, new cases will come up and be litigated, but the questions then will be about if and how precedent applies to the new situation. Sometimes this inquiry may result in the narrowing or limiting a precedent's reach, but precedent has historically been outright nullified only on the rarest of occasions and only when there has been a material change in the circumstances upon which the Court's reasoning had rested, like a new statute, a new Constitutional amendment (rare), or some other fundamental shift in society prompting a second look by the Court.

And even then the Court's practice has not been to simply ignore or overturn its previous rulings; rather, it would generally issue decisions to explain what holdings were being revisited, and why, so that the new decisions could take on the same weight of recognized authority the previous precedent once had. But that standard went out the window on that Thursday night when it issued the Whole Women's Health order. With this order it signaled that it is happy to cavalierly trash the Court's previous rulings, and, worse, with no explanation. While reasonable minds may disagree about the wisdom of a particular Court decision, everyone should be able to read its analysis to understand how the Court arrived at its conclusion. But there is nothing here in this order to legitimize the Court's sudden and drastic rejection of all the past precedent the statute implicated. Worse, in so rejecting it, it has told the world that we can never know what the law is, because it can change instantly, depending entirely on the majority's mood of that moment.

Such a reality is untenable. No matter what you think of the Texas statute, even if you believe in or support its policy goals, what the Supreme Court did on this Thursday night should still strike fear in your heart. Because the impact of what it did transcends any particular law or policy. Not only did it undermine its own esteem as an institution, but it made America unsustainable, a hollowed-out Potemkin Village of abandoned constitutional principle, and Americans no better off than the wretched citizens of the ancient feudal empire that inspired the story.

What happened on that Thursday night was the catastrophic undermining of not only the Court's own legitimacy but the legitimacy of the entire American legal system. It left all our laws and freedoms, and even the very adjudication of these questions, subject only to the capricious whim of the handful of people with enough power to unilaterally decree, with no argument, consideration, or any need to justify themselves, how we must live our lives. We might as well replace their black robes with crimson ermine and sit them on thrones, so at least we can all see and acknowledge the sheer unchecked power they now rule us with.

This is not how our constitutional order has worked. It is not how our constitutional order can work. Yes, courts have always had lots of power. And the Supreme Court in particular has always had an enormous amount of power to shape our legal world. But there were always apparent rules tempering this power. Which meant that such things as reason, persuasion, equitable procedure, predictable precedent, transparency, and notions of fair play could function as guiding pillars within which advocacy took place so that, win or lose, we all could believe in the justice of the result. But not anymore. With this order all those basic tenets have now been bulldozed. Even any sort of reasonable standard for injunctive relief is out the window. As Justice Kagan noted in her dissent, the Court's unconstrained behavior has become increasingly "unreasoned, inconsistent, and impossible to defend." In other words: our law has itself become lawless.

Supreme Court justices are of course human beings and therefore fallible, and the Supreme Court itself is a human institution that necessarily has to evolve as the society it serves does as well. But the concern is not that the Supreme Court may be evolving, because evolution is one thing; radically altering the operation of the Court practically overnight is another. And what the majority did can hardly be explained away as mere mistake, as in, "Oops, five justices' pens slipped and they accidentally repudiated decades if not centuries of past practice and precedent." But when even the most generous view of what happened is incompetence it severely undermines the esteem of the institution and those who inhabit it.

Nor can we say it's simply a matter of one bad decision. Bad decisions have happened before, and while it's never good when they do, as long as the system still works they can eventually be overcome. But what happened here represented a fundamental shift in the way the Court exercises its power, from one of predictable certainty to one of subjective judicial impulse, and there's no overcoming that change.

How could we? For those of us connected to the legal profession, what power would we still possess as practitioners to influence the cause of justice in this new system? What skills could we still exercise? How could we continue to play our own constitutional role in furthering justice in the courts when everything we were taught in law school about the American legal system has just suddenly been rendered moot?

Yes, life will go on for most tomorrow, and the day after, and the day after that. But for how long can we deceive ourselves that everything remains normal when the new normal is anything but? When the Supreme Court can so dramatically change our understanding of the law and the scope and dimension of our rights with little more than a snap of its fingers, how are we to live in a society predicated on the rule of law and guaranteed rights? How can we even tell ourselves that we are? We're like the coyote that has run off the cliff, and sooner or later we're going to notice that there is nothing supporting us anymore. And then where will we be?

Filed Under: abortion, civil rights, laws, status quo, supreme court, texas

Ninth Circuit: Sorry, But We Have No Way To Hold Border Patrol Agents Accountable For Killing People In Mexico

from the only-exact-replicas-of-Bivens-are-accepted dept

Thanks to the Supreme Court, it's pretty much legal for US law enforcement officers to kill people in Mexico. I know, that doesn't seem right but that's the way it plays out. So long as only bullets cross the border, the extraterritorial, extrajudicial killings are incapable of being remedied by a civil rights lawsuit.

Early last year, the Supreme Court upheld a Fifth Circuit decision refusing to extend Bivens to cover the killing of Mexican teen Sergio Adrian Hernandez Guereca by US Border Patrol agent Jesus Mesa, Jr. According to the agent, a group of teens were running back and forth across a culvert to touch the border fence. He also claimed they were "pelting" him "with rocks." (Cell phone footage of the killing contradicted Mesa's rock-throwing claim.) Apparently, this conflict could not be resolved without deadly force. Mesa shot across the border, killing the fifteen-year-old.

After two passes at the civil rights suit at the appellate level, it moved forward to the Supreme Court, which ruled that Bivens does not cover cross-border shootings. Without a cause of action, there can be no lawsuit. Mesa escaped even a limited form of justice and the Supreme Court's recommendation was basically to avoid being shot on the wrong side of the border. The nation's top court further refused to insert itself in this sort of international matter, recommending only that both governments (US/Mexico) try to work something out that will possibly allow people to seek justice for extraterritorial, extrajudicial killings.

This decision has now paid off for another perpetrator of an extrajudicial, extraterritorial killing. In 2011, US Border Patrol agent Dorian Diaz shot and killed Jose Alfredo Yanez, claiming Yanez tried to hit him with a nail-studded table leg through a hole in the border fence before mounting the fence to throw rocks at him. Rather than retreat beyond rock-throwing distance, Diaz shot Yanez, who landed literally across the border line.

If he had landed wholly in the United States, his survivors might have had a case. But the US government definitely didn't want his survivors to sue successfully, so it hired a surveyor to map out Yanez's dead body to determine how much of it was laying in which country. The final call? Mostly in Mexico. (You can see that surveyor's photo here. [Content Warning: blood/death])

And the Ninth Circuit's final call [PDF]? This killing isn't enough like the original Bivens case to be pursued as a Bivens case. Because killing people at the border isn't like a warrantless search of a house, the Border Patrol agent will be allowed to walk away from this lawsuit.

Here we confront a new Bivens context because the claims against Fisher and Diaz “differ[] in a meaningful way” from prior Bivens cases. The most analogous Supreme Court case—and the only one to approve a Bivens remedy for an excessive force claim—is Bivens itself.4 There, the plaintiff alleged that federal narcotics agents violated his Fourth Amendment rights by arresting him, handcuffing him in his home, and searching his home without probable cause or a search warrant. Bivens, 403 U.S. at 389–90. This case, by contrast, involves a fatal shooting, at the border, by a federal agent, of a Mexican national who crossed into the United States. The shooting allegedly occurred pursuant to the “Rocking Policy,” an executive policy authorizing deadly force in response to rock throwing. Though there are similarities between this case and Bivens, the differences suffice to satisfy the Court’s permissive test for what makes a context “new.”

Once again, the message being sent by the courts to foreign citizens is: try not to get killed by a federal agent. Our hands are tied, even though we did most of the knot-tying ourselves.

This case is a paradigmatic example of congressional parameters and Supreme Court precedent defining the scope of relief. The Alien Tort Statute does not reach the challenged conduct and the request for relief under the Federal Tort Claims Act came too late. And in accord with Abbasi and Hernandez, we conclude that a special factor precludes relief under Bivens.

The Supreme Court's decision also means another case handled by the Ninth Circuit involving the killing of a Mexican citizen by a US federal agent has also been dismissed. The Appeals Court originally stripped immunity from Border Patrol agent Lonnie Swartz, who fired 16 bullets through a fence at 16-year-old Jose Antonio Elena Rodriguez. Ten of those bullets hit Rodriguez, killing him. Again, the excuse for the shooting was rock-throwing. That case is now terminated, with the Ninth Circuit dismissing it with prejudice in early July in light of the Supreme Court's decision in Hernandez.

It's up to Congress to do something about this. It's highly unlikely the Supreme Court will revisit this issue anytime soon. Until then, it's open season on Mexican residents, provided they do all of their dying in their own country.

Filed Under: 9th circuit, bivens, cbp, cross border killing, jesus mesa, mexico, sergio adrian hernandez guereca, supreme court

Supreme Court Asked To Firmly Establish A First Amendment Right To Record Police Officers

from the an-inevitable-conclusion,-but-how-much-longer-do-we-need-to-wait? dept

Earlier this year, the Tenth Circuit Court of Appeals awarded qualified immunity to officers who grabbed a tablet from Levi Frasier and tried to delete his recording of them. Frasier happened across these officers applying force during an arrest and decided to record it. The officer didn't like this so they took away his device and tried to find the video to delete it. Apparently unable to locate it, the officer yelled back to his partner that he couldn't find the recording, to which his partner replied, "As long as there's no video, it's ok."

The lower court found in favor of the officers, ruling they had reasonable suspicion to detain Frasier because he had lied about recording them, supposedly breaking a law that has nothing to do with lying to officers (at least not in this fashion).

The district court, as relevant here, held that Officer Evans had reasonable suspicion to detain Mr. Frasier throughout their twenty-three-minute encounter because Mr. Frasier lied to him about filming the arrest, thereby potentially violating Colorado Revised Statutes § 18-8-111, which proscribes knowingly making certain false statements to the police.

But this statute covers false emergency reports, falsely reporting crimes, and lying to officers about who you are when you're arrested. It clearly doesn't cover the conduct shown here. Nevertheless, the lower court used this justification to extend qualified immunity to the officers, despite the fact the officers had received training and notification that there was a presumed right to record police -- something backed up by court precedent around the nation.

The Tenth Circuit used the lower court's reasoning to justify its own finding in favor of the officers. And it went on to say that just because a cop has been informed that seizing or preventing recordings violates people's rights, no "reasonable" officer with the same training would assume that meant they couldn't seize people's devices and attempt to delete recordings.

[J]udicial decisions are the only valid interpretive source of the content of clearly established law, and, consequently, whatever training the officers received concerning the nature of Mr. Frasier’s First Amendment rights was irrelevant to the clearly-established-law inquiry.

Levi Frasier is hoping the Supreme Court will take his case. So are we. This should clear things up. There's not exactly a circuit split to resolve but there's no top-level declaration establishing the right to record public officials. Some circuits have established this bright line but many have not, allowing officers to walk away from lawsuits despite knowing courts tend to find recording officers is covered under the First Amendment. But because there's still a chance a court may find otherwise, officers can claim to be "reasonable" even if the courtroom odds are against them.

Frasier's petition [PDF] asks the Supreme Court to settle this question once and for all. (h/t SCOTUSblog)

Whether it has been “clearly established” since at least 2014 that the First Amendment protects the right of individuals to record police officers carrying out their duties in public.

It also asks the court to declare that training officers receive should have bearing on "reasonableness" decisions when qualified immunity is on the line. Given the top court's recent rollback of some of its expansion of qualified immunity, the second question is at least as timely as the first. As the petition points out, the Tenth Circuit ignored precedent and the officers' own training to excuse them from this lawsuit.

Regardless of whether this Court might wish to reconsider qualified immunity as a whole, this case presents a timely opportunity to resolve two divisions of authority and to curb an unjustified distortion of the doctrine. At the time of the remarkable incident in this case, the respondent police officers’ training and departmental policies expressly advised them that the First Amendment protects the right of citizens to record officers performing their duties in public. All four federal court of appeals decisions on the issue said the same thing, consistent with this Court’s precedent. Yet the Tenth Circuit granted the respondents immunity for doing exactly what they had been told was unconstitutional. The Tenth Circuit reasoned (1) that the training and law enforcement policies are “irrelevant” to the qualified-immunity analysis and (2) that existing legal precedent was insufficient on its own to make the right here clearly established.

As Frasier notes, this question should never have been considered by the Tenth Circuit because there was nothing left unanswered according to the officers' own testimony.

The qualified-immunity doctrine was created to prevent officers from being held unexpectedly liable based on constitutional rules they “neither knew nor should have known” existed. Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). The officers here all testified that they knew they were violating petitioner’s rights. Their training, department policies, and precedent all underscored that reality.

Addressing this would resolve the circuit split the Tenth Circuit deepened by deciding officers' training is somehow irrelevant to discussions of "reasonable" officers and their actions.

There's no real split when it comes to the right to record police officers, but the Supreme Court itself hasn't handed down precedent that affirms or establishes this right, so officers are free to pretend plenty of other courts haven't reached that conclusion.

When the events here occurred, all four federal courts of appeals to have considered the constitutional issue had held that “there is a First Amendment right to record the police performing their duties in public spaces.” But, citing Wilson, the Tenth Circuit held that respondents were entitled to qualified immunity because the circuits have “disagreed regarding whether this purported First Amendment right to record [i]s clearly established.”

The petition says the Tenth Circuit misread this decision. That one extended qualified immunity when there was a circuit disagreement "on a constitutional question." In all four of the circuit decisions handling the issue, there's no split because each court reached the same conclusion on the underlying constitutional question. Because the courts reached conflicting conclusions on the extension of qualified immunity does not show that they disagree on the right to record police officers. And there's plenty of other federal case law, along with any number of law enforcement policies, that make it clear recording officers is protected activity.

This reasoning is mistaken. For one thing, it improperly ignores the robust body of lower court jurisprudence that is directly on point. The clearly-established-law inquiry is not a game of divide-and-conquer. It is a holistic inquiry. See, e.g., Hope, 536 U.S. at 736-46. And here, the combination of precedent from this Court and the lower courts (plus the officers’ training and departmental policies, see supra at 16- 23) renders the law clearly established.

This is a case the Supreme Court should definitely take. The right to record police officers is assumed, thanks to a host of case law finding this act to be Constitutionally protected. But, as happened here, the lack of a firm resolution from the nation's top court, along with the fact that only a handful of circuits have directly addressed this issue, makes it unclear enough that officers can ignore their own internal policies to hassle, deter, or arrest citizens who film them. This decision is at least a decade past due. And the longer it goes unresolved, the longer the sort of abuse witnessed in this case will continue to occur.

Filed Under: 10th circuit, 1st amendment, levi frasier, recording police, supreme court

Supreme Court Rejects Another Questionable Qualified Immunity Decision By An Appeals Court

from the SCOTUS-plays-another-round-of-QI-hot-potato dept

The Supreme Court appears to be continuing to make amends for the mess it's made of qualified immunity over the years. Having tilted the playing field so far in favor of law enforcement even appeals court judges started making audible noise about the injustices encouraged by this doctrine, the Supreme Court seems to be trying to make things a bit more level.

Within the past eight months, the nation's top court has reversed two cases in which qualified immunity was granted to law enforcement officers. Both cases came from the Fifth Circuit -- the circuit that most often finds in favor of officers in civil rights lawsuits.

Its most recent reversal adds the Eighth Circuit to the list of appellate courts the slightly-more-woke Supreme Court has asked to reconsider a qualified immunity decision. (h/t Mark Joseph Stern)

Like the two decisions sent back to the Fifth Circuit Court of Appeals, this reversal comes from the Supreme Court's "shadow" docket. No separate opinion was released. Instead, the short reversal is contained in court's most recent disposition list, which is mostly made up of cases granted or denied an opportunity to be heard by the nation's top court.

The case deals with six St. Louis police officers who killed a man they had just arrested by pinning him in a prone position while he was already shackled. Nicholas Gilbert was arrested for trespassing and for failing to appear in court for an outstanding traffic ticket. While in the holding cell, Gilbert began behaving erratically. One officer claimed to see Gilbert trying to craft a makeshift noose out of an article of clothing.

Three officers entered the cell and attempted to restrain Gilbert. The combative Gilbert tried to kick the cops but ended up doing nothing more than injuring his own head on the concrete bench. The struggle continued and more officers entered. A couple of officers left, claiming they felt winded from the struggle.

Shortly after this, officers managed to cuff Gilbert and shackle his legs. They placed him in a prone position and three officers put their weight on Gilbert's 5'3" 160-pound body. Eventually Gilbert stopped struggling because he was dying. This is from the Eighth Circuit's affirmation of the district court's decision in favor of the officers.

After fifteen minutes of struggle in the prone position, Gilbert stopped resisting and the officers rolled him from his stomach onto his side. By this point, each of the named officers had participated in the effort to physically control Gilbert.

At some point while in the prone position, Gilbert had stopped breathing. Officer Mack rolled Gilbert onto his back and initially found a pulse in his neck but eventually was unable to find one. Gilbert was transported to the hospital where he was pronounced dead.

The Eighth Circuit Court said there was no excessive force and qualified immunity was granted to all officers involved.

The Supreme Court [PDF] says this is the wrong conclusion. And its depiction of the events is a bit more disturbing than the summary written by the Appeals Court, which doesn't include this part:

The officers moved Gilbert to a prone position, face down on the floor. Three officers held Gilbert’s limbs down at the shoulders, biceps, and legs. At least one other placed pressure on Gilbert’s back and torso. Gilbert tried to raise his chest, saying, “‘It hurts. Stop.’”

The Supreme Court says the Appeals Court was too hasty and overlooked too many details when coming to the conclusion the force used in this case wasn't excessive.

Although the Eighth Circuit cited the Kingsley factors, it is unclear whether the court thought the use of a prone restraint—no matter the kind, intensity, duration, or surrounding circumstances—is per se constitutional so long as an individual appears to resist officers’ efforts to subdue him. The court cited Circuit precedent for the proposition that “the use of prone restraint is not objectively unreasonable when a detainee actively resists officer directives and efforts to subdue the detainee.” 956 F. 3d, at 1013. The court went on to describe as “insignificant” facts that may distinguish that precedent and appear potentially important under Kingsley, including that Gilbert was already handcuffed and leg shackled when officers moved him to the prone position and that officers kept him in that position for 15 minutes.

The Appeals Court could only reach this conclusion by deciding important facts were actually "insignificant." To the contrary, says the Supreme Court. These facts are, in fact, very significant.

Such details could matter when deciding whether to grant summary judgment on an excessive force claim. Here, for example, record evidence (viewed in the light most favorable to Gilbert’s parents) shows that officers placed pressure on Gilbert’s back even though St. Louis instructs its officers that pressing down on the back of a prone subject can cause suffocation. The evidentiary record also includes well-known police guidance recommending that officers get a subject off his stomach as soon as he is handcuffed because of that risk. The guidance further indicates that the struggles of a prone suspect may be due to oxygen deficiency, rather than a desire to disobey officers’ commands. Such evidence, when considered alongside the duration of the restraint and the fact that Gilbert was handcuffed and leg shackled at the time, may be pertinent to the relationship between the need for the use of force and the amount of force used, the security problem at issue, and the threat—to both Gilbert and others—reasonably perceived by the officers. Having either failed to analyze such evidence or characterized it as insignificant, the court’s opinion could be read to treat Gilbert’s “ongoing resistance” as controlling as a matter of law. Such a per se rule would contravene the careful, context-specific analysis required by this Court’s excessive force precedent

The Supreme Court says it has no opinion to offer on the constitutionality of the force used in this case. But it does say the current decision can't stand. The Appeals Court needs to examine the facts more closely, rather than simply decide some crucial facts aren't worth paying attention to.

Filed Under: eighth circuit, nicholas gilbert, qualified immunity, supreme court

Supreme Court Says Patent Review Judges Are Unconstitutional, But It Can Be Fixed If USPTO Director Can Overrule Their Decisions

from the well-that-creates-some-other-problems dept

As you may recall, a few weeks ago I wrote about how Congress was asking the GAO to investigate whether the director of the US Patent & Trademark Office had been interfering in determinations made by the Patent Trial and Appeal Board (PTAB). I'm not going to go into all of the background again (please read the original for that), but under the America Invents Act, a process for reviewing patents after they were granted was set up, known as the Inter Partes Review (IPR) process. This was important, because the granting of patents is a non-adversarial process, where patent examiners are not given very much time to actually review everything. So the IPR process allowed those (especially those with prior art) to kick off a process by which the PTAB would recheck to see if the original examiner made a mistake in granting a 20 year monopoly to someone.

Unfortunately, because the members of the PTAB are designated as Administrative Patent Judges (APJs), there was the question of whether or not they needed to be appointed by the President with Senate confirmation to abide by the Appointments Clause of the Constitution. That question has been hanging out in the Supreme Court for many months -- with the decision finally coming down this week. In arguing against this notion, the USPTO itself had claimed that the APJs were "interior officers" that don't need Senate confirmation, and part of their "proof" was that the Director of the PTO could review their decisions. This raised some alarms in Congress, because it certainly wasn't their intention (from everything stated so far) to allow the Director of the PTO to put their finger on the scale of what is and what is not patentable.

The full opinion from the Supreme Court is a bit of a mess -- with different Justices signing onto different parts. But the key bits to pull out of this are that the Supreme Court found that the APJs are (or have been) "Principal Officers" meaning they should have been appointed by the President and confirmed by the Senate.

History reinforces the conclusion that the unreviewable executive power exercised by APJs is incompatible with their status as inferior officers. Since the founding, principal officers have directed the decisions of inferior officers on matters of law as well as policy. Hamilton articulated the principle of constitutional accountability underlying such supervision in a 1792 Treasury circular. Writing as Secretary of the Treasury to the customs officials under his charge, he warned that any deviations from his instructions “would be subversive of uniformity in the execution of the laws.” 3 Works of Alexander Hamilton 557 (J. Hamilton ed. 1850). “The power to superintend,” he explained, “must imply a right to judge and direct,” thereby ensuring that “the responsibility for a wrong construction rests with the head of the department, when it proceeds from him.”

However, in then immediately inserts its own remedy, saying that everything is fixable if the Patent Office Director actually can review the IPR decisions.

In sum, we hold that 35 U. S. C. §6(c) is unenforceable as applied to the Director insofar as it prevents the Director from reviewing the decisions of the PTAB on his own. The Director may engage in such review and reach his own decision. When reviewing such a decision by the Director, a court must decide the case “conformably to the constitution, disregarding the law” placing restrictions on his review authority in violation of Article II

So, the good news here is that the important PTAB/IPR process remains alive. But it does seem quite worrisome that the end result is that any Director of the Patent Office can now step in and overrule the PTAB. One would hope that the political ramifications of doing so would prevent it, but it does seem that it's now possible that a Director who just doesn't like the whole IPR/PTAB process (and there are many patent system fans who hate it) could just automatically deny every single IPR.

And that seems very worrisome. Of course, all of this could be solved by making the APJs Senate confirmable, but apparently no one wants to bother with doing that. Alternatively, we could rethink the entire patent approval process altogether, so that it doesn't need to go back and realize it granted 20 year monopolies for no good reasons... but, you know, that would take actual effort.

Filed Under: appointments clause, oversight, patent appeals board, patent review, patentability, patents, ptab, supreme court, uspto

Did The Supreme Court Just Take A Sledge Hammer To Copyright's Statutory Damages?

from the possibly... dept

Last week, in a somewhat controversial decision in the TransUnion v. Ramirez case, the Supreme Court ruled, 5 to 4, that plaintiff's in a class action lawsuit did not have standing to sue under the Fair Credit Reporting Act (FRCA). The issue may seem wholly unrelated from copyright, but in reading through the decision, it's possible it could lead to a vastly different world for copyright going forward, because the same issues that the Court finds fault with in the FRCA also apply to copyright law -- and, indeed, it's the part of copyright law that is most widely abused in lawsuits.

I should be clear that I think the holding in the TransUnion case is problematic and seems... well... weird. But if what the majority decided is true, then I don't see how copyright's statutory damages can remain constitutional. Let's dig into the case to explore why. The majority opinion, written by Justice Kavanaugh gives the basic overview right upfront:

To have Article III standing to sue in federal court, plaintiffs must demonstrate, among other things, that they suffered a concrete harm. No concrete harm, no standing. Central to assessing concreteness is whether the asserted harm has a “close relationship” to a harm traditionally recognized as providing a basis for a lawsuit in American courts—such as physical harm, monetary harm, or various intangible harms including (as relevant here) reputational harm.

The issue in this case involved TransUnion's credit reports damaged people by flagging their reports to say that they might be listed on an Office of Federal Assets Control (OFAC) watchlist. Basically, if TransUnion thought that someone's name matched someone on the OFAC list, it would put that in their credit report. For a lot of people who aren't actually on the OFAC list, that can really suck. That resulted in this lawsuit. The court found that for those on that list who could show actual damage, they had standing. But, for others who were flagged by TransUnion, but could not show any actual harm, they did not have standing to sue.

In this case, a class of 8,185 individuals sued TransUnion, a credit reporting agency, in federal court under the Fair Credit Reporting Act. The plaintiffs claimed that TransUnion failed to use reasonable procedures to ensure the accuracy of their credit files, as maintained internally by TransUnion. For 1,853 of the class members, TransUnion provided misleading credit reports to third-party businesses. We conclude that those 1,853 class members have demonstrated concrete reputational harm and thus have Article III standing to sue on the reasonable-procedures claim. The internal credit files of the other 6,332 class members were not provided to third-party businesses during the relevant time period. We conclude that those 6,332 class members have not demonstrated concrete harm and thus lack Article III standing to sue on the reasonable-procedures claim.

The constitutional analysis focuses on the power of the judiciary to deal with actual cases and controversies:

Therefore, we start with the text of the Constitution. Article III confines the federal judicial power to the resolution of “Cases” and “Controversies.” For there to be a case or controversy under Article III, the plaintiff must have a “‘personal stake’” in the case—in other words, standing. Raines, 521 U. S., at 819. To demonstrate their personal stake, plaintiffs must be able to sufficiently answer the question: “‘What’s it to you?’” Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 882 (1983).

To answer that question in a way sufficient to establish standing, a plaintiff must show (i) that he suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial relief. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560– 561 (1992). If “the plaintiff does not claim to have suffered an injury that the defendant caused and the court can remedy, there is no case or controversy for the federal court to resolve.” Casillas v. Madison Avenue Assocs., Inc., 926 F. 3d 329, 333 (CA7 2019) (Barrett, J.).

So, then the open question is whether or not a law that allows a private right of action over something that is a potential, but not concrete, harm meets the standard. And the majority decides it does not. And then, it goes even further, and notes that even if Congress creates a statutory "prohibition or obligation," courts can't just accept that as evidence of a concrete harm:

Importantly, this Court has rejected the proposition that “a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Spokeo, 578 U. S., at 341. As the Court emphasized in Spokeo, “Article III standing requires a concrete injury even in the context of a statutory violation.” Ibid.

Congress’s creation of a statutory prohibition or obligation and a cause of action does not relieve courts of their responsibility to independently decide whether a plaintiff has suffered a concrete harm under Article III any more than, for example, Congress’s enactment of a law regulating speech relieves courts of their responsibility to independently decide whether the law violates the First Amendment. Cf. United States v. Eichman, 496 U. S. 310, 317– 318 (1990). As Judge Katsas has rightly stated, “we cannot treat an injury as ‘concrete’ for Article III purposes based only on Congress’s say-so.” Trichell v. Midland Credit Mgmt., Inc., 964 F. 3d 990, 999, n. 2 (CA11 2020) (sitting by designation); see Marbury, 1 Cranch, at 178; see also Raines, 521 U. S., at 820, n. 3; Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 41, n. 22 (1976); Muskrat v. United States, 219 U. S. 346, 361–362 (1911).

As the Court then says explicitly, just because someone will have claimed to have violated a statutory cause of action that does not automatically mean there is a concrete harm:

For standing purposes, therefore, an important difference exists between (i) a plaintiff ’s statutory cause of action to sue a defendant over the defendant’s violation of federal law, and (ii) a plaintiff ’s suffering concrete harm because of the defendant’s violation of federal law. Congress may enact legal prohibitions and obligations. And Congress may create causes of action for plaintiffs to sue defendants who violate those legal prohibitions or obligations. But under Article III, an injury in law is not an injury in fact. Only those plaintiffs who have been concretely harmed by a defendant’s statutory violation may sue that private defendant over that violation in federal court.

Indeed, the majority argues that this is, fundamentally, a separation of powers issue:

In sum, the concrete-harm requirement is essential to the Constitution’s separation of powers. To be sure, the concrete-harm requirement can be difficult to apply in some cases. Some advocate that the concrete-harm requirement be ditched altogether, on the theory that it would be more efficient or convenient to simply say that a statutory violation and a cause of action suffice to afford a plaintiff standing. But as the Court has often stated, “the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution.” Chadha, 462 U. S., at 944. So it is here.

The main dissent, written by Justice Thomas (it's an ideologically odd pairing: Justice Thomas with the three Justices most commonly found on the other end of the ideological spectrum: Justices Breyer, Sotomayor, and Kagan) is actually fairly compelling regarding the issue of concrete harm:

The principle that the violation of an individual right gives rise to an actionable harm was widespread at the founding, in early American history, and in many modern cases. See Uzuegbunam, 592 U. S., at ___–___ (slip op., at 5–8) (collecting cases); Havens Realty Corp. v. Coleman, 455 U. S. 363, 373 (1982) (“[T]he actual or threatened injury required by Art. III may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing” (citing cases; brackets and internal quotation marks omitted)). And this understanding accords proper respect for the power of Congress and other legislatures to define legal rights. No one could seriously dispute, for example, that a violation of property rights is actionable, but as a general matter, “[p]roperty rights are created by the State.” Palazzolo v. Rhode Island, 533 U. S. 606, 626 (2001). In light of this history, tradition, and common practice, our test should be clear: So long as a “statute fixes a minimum of recovery . . . , there would seem to be no doubt of the right of one who establishes a technical ground of action to recover this minimum sum without any specific showing of loss.” T. Cooley, Law of Torts *271.3 While the Court today discusses the supposed failure to show “injury in fact,” courts for centuries held that injury in law to a private right was enough to create a case or controversy.

Thomas also goes back to the issue of statutory damages in copyright to prove his point:

The First Congress enacted a law defining copyrights and gave copyright holders the right to sue infringing persons in order to recover statutory damages, even if the holder “could not show monetary loss.” Muransky v. Godiva Chocolatier, Inc., 979 F. 3d 917, 972 (CA11 2020) (Jordan, J., dissenting) (citing Act of May 31, 1790, §2, 1 Stat. 124–125). In the patent context, a defendant challenged an infringement suit brought under a similar law. Along the lines of what TransUnion argues here, the infringer contended that “the making of a machine cannot be an offence, because no action lies, except for actual damage, and there can be no actual damages, or even a rule for damages, for an infringement by making a machine.” Whittemore v. Cutter, 29 F. Cas. 1120, 1121 (No. 17,600) (CC Mass. 1813). Riding circuit, Justice Story rejected that theory, noting that the plaintiff could sue in federal court merely by alleging a violation of a private right: “[W]here the law gives an action for a particular act, the doing of that act imports of itself a damage to the party” because “[e]very violation of a right imports some damage.” Ibid.; cf. Gayler v. Wilder, 10 How. 477, 494 (1851) (patent rights “did not exist at common law”).

But this example in the dissent now seems to serve the opposite point: and effectively argues that under the majority decision, copyright's statutory damages may not be available at all if a plaintiff cannot show "concrete harm."

That's a very big deal in the copyright context. For years, we've pointed out the problematic nature of statutory damages in copyright. Under copyright law, if the work is registered before the infringement, statutory damages are available. And the whole theory behind them is that it's supposedly difficult to show the concrete harm of infringement, and therefore, you don't need to show any actual harm to get statutory damages, and those damages are wholly unrelated to any actual harm. As we noted a decade ago, this makes it "too attractive to sue." Basically, the possible payout from statutory damages, without having show any actual harm or damages at all, is massively distortionary.

And, now, looking at this ruling, it seems that there's an open argument if copyright plaintiffs will now be able to rely on statutory damages if they can't show any harm at all. This wouldn't completely take away statutory damages, but would, at the very least require plaintiffs to show some kind of harm.

Of course, when it comes to copyright law, one of the things we've noted is that courts seem to ignore every other precedent and treat everything related to copyright as if it's different. And, if this issue ever comes back to the court, I'd predict we'd see that same thing again. Judges will bend over backwards to insist that copyright is somehow "different." And it's possible that the majority ruling has an escape valve for that: it mentions repeatedly that part of the way of judging whether or not there's concrete harm is whether or not the issue is "traditionally recognized as providing a basis of a lawsuit in American courts." And, as the Thomas dissent makes clear, that's definitely been the case for copyright law and statutory damages going back basically to the beginning.

However, I do wonder if there's another interesting opening here on that: while in the early 2000s, Larry Lessig pushed a variety of failed cases to try to argue that the massive changes brought about by more recent copyright law changes raised constitutional issues. The Supreme Court rejected those arguments (wrongly in my opinion), but I do wonder if this ruling in TransUnion, at the very least, raises questions about statutory damages under the 1976 Copyright Act, since it covers so much more content, for so much longer, than was "traditional" under copyright law for the first two centuries of the country.

Filed Under: concrete harm, copyright, ofac, ramirez, statutory damages, supreme court
Companies: transunion