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June 30, 2005

USAPA Radio Ad ::
politics, legal — tagged , , and
11:06 am

So I was sitting here, and I just heard a radio ad from these people, who are actively opposing further expansion or extension of the USA PATRIOT ACT. At first blush, they seem to be a diverse group of people from quite different political backgrounds, who share a common interest in civil liberties and limiting governmental intrusion on their lives.

I haven’t talked much about the PATRIOT ACT on these pages, mostly because I don’t think it diminished our protections all that dramatically compared to what they were pre-USAPA. Rather, protracted War on Drugs, combined with an judiciary that has often been quite unsympathetic to the civil rights of suspected criminals did an effective job of undermining many of our constitutional and civil rights protections long before that bill was passed. And unfortunately, those rights were limited in semi-secret, over many years, with very few people noticing or attempting to fight back.

So I have a hard time understanding everyone’s exasperation. But I’ve also taken Constitutional Criminal Procedure, so I’ve seen the slow attrition of civil rights, albeit only in the classroom, through a long string of Supreme Court cases decided since the early 1970’s. But one thing I will say about the Checks and Balances people, as well as people like my Congressman, is that their efforts to curb the effects of the USAPA are opening a new dialog on how much we all value those consitutional protections. Indeed, this is a discussion we should have been having long ago.

Update: From Patriots for Checks and Balances website:

Patriots to Restore Checks and Balances (PRCB) is a network of individuals and organizations—conservatives and progressives—that believes the threat of terrorism cannot be allowed to dissolve or erode the carefully constructed structural foundations for preserving our liberty, enshrined forever in the Constitution.

June 28, 2005

Breyer saves Grokster? ::
supreme court, tech, legal — No Tags
2:56 pm

Yesterday I mentioned that the Court didn’t give the content producers in Grokster what they really wanted, which was an overturning of Sony/Betamax. But as I suggested in that previous post, the unanimous opinion addressed Sony only to make clear that the Ninth Circuit misinterpreted the rule it established.

Reading that section of the unanimous opinion in conjuction with Justice Breyer’s concurrence paints a slightly different picture. Section II of his opinion, Justice Breyer, joined Justices O’Connor and Stevens, make clear “Sony’s rule, as I interpret it, has provided entrepreneurs with needed assurance that they will be shielded from copyright liability as they bring valuable new technologies to market.” He then goes on to make clear why that standard was integral to the advancement of technology since it was decided in 1984.

Justice Breyer’s concurrence reminds me why I like his thinking so much. More thank any other Justice, he understands that our propsperity (by which I mean not just the opportunity to get rich) has depended on the freedom of technological development. And he was true to form in this opinion.

More Grokster ::
supreme court, tech, legal — No Tags
2:39 pm

I thought it might be worthwhile to collect some of the more interesting discussions of the Grokster decisions and post them here. First, from Legal Fiction comes a theory about what the content producers really wanted to see from that case:

The issue in Grokster was defining the proper test for secondary liability for copyright infringement. ...But given the technology of P2P file-sharing, it’s almost impossible to devise a test of secondary liability that reaches Grokster, but doesn’t simultaneously reach software and hardware producers. For instance, let’s say that the Court established secondary liability for the sale of any product known to be used for copyright infringement. Under this test, liability would extend not only to Grokster, but to Microsoft for its Windows software, to Apple for its iPod, and to Dell and the PC industry.

Fair enough. Since the big powers of the tech industry are the ones with all the money, they’re the ones the content producers are going to want to target in civil litigation. But still, I think this opinion creates enough potential fear in small software developers that it will most likely result in certain chilling effect on future software development, if only temprorarily. After all, a small company that has no money must abide by a court’s injuction just as much as an established corporation with loads of cash. From my point of view, this is particularly worrisome, since the best technological innovations have almost invariably come from the small, independent entities who lack capital, a decision that actually discourages such action—or at least establishes a requirement that will cause them to really think about the type of software they’re developing. I think the Court had all of that in mind when it established such a fact-intensive test to determine whether a company is engaged in secondary liability for copyright infringement.

But LF goes on to note:

My fear with Grokster is that it gives the record companies just enough to drag Microsoft into court and get discovery, even if it’s not enough to establish its liability. Souter’s test is a fact-intensive one. Accordingly, even if Microsoft would never be found liable, I suspect that well-paid record industry attorneys could get the case to the discovery stage – in large part because the standard turns so heavily on the facts and subjective intent – which of course, as any record industry attorney would tell you, requires reading tons and tons of internal Microsoft emails.

I don’t share that fear. As far as I’m concerned, one group of thuggish bullies (the MPAA and its attorneys) deserve another (Microsoft).

I have at least one more post on this issue in me today, I think, so stay tuned.

June 27, 2005

Grokster Fallout ::
supreme court, tech, legal — No Tags
11:58 am

PDF of the Grokster opinion, hosted on this site.

OK, so I haven’t scrutinized the opinion yet, but it looks like the Supreme Court’s Grokster decision is bad news for filesharing. But one point of optimism is in order: the Court declined to overrule Sony/Betamax. In the opinion’s main reference to that case, the Court only noted that the Ninth Circuit’s interpretation of the theory of secondary liability. Justice Souter notes only that the Ninth Circuit was mistaken in its interpretation, because it

[converted] the case from one about liability resting on imputed intent to one about liability on any theory. Because Sony did not displace other theories of secondary liability, and because we find below that it was error to grant summary judgment to the companies on MGM’s inducement claim, we do not revisit Sony further, as MGM requests, to add a more quantified description of the point of balance between protection and commerce when liability rests solely on distribution with knowledge that unlawful use will occur. It is enough to note that the Ninth Circuit’s judgment rested on an erroneous understanding of Sony and to leave further consideration of the Sony rule for a day when that may be required.

Phew!

I’m sure in the coming days there were be heavy discussion in the tech law community on the Grokster case. And for those of us who are concerned with overly-expansive copyright law, I think we’ll be discussing what, exactly, this opinion didn’t say.

June 26, 2005

Where I stand on Kelo ::
legal — tagged , , , and
4:37 pm

So, if you read any of the legal blogs in the past week, you’ve probably seen a lot of discussion about the Supreme Court’s decision in Kelo v. City of New London. In that case, the Court decided that economic development was within the defintion of “public use” in the takings clause of the Fifth Amendment, and therefore the City of New London had the authority to seize private property and transfer it to Pfizer, so it could in turn “build a $300 million research facility” on the property.

I am conflicted somewhat about the decision, but I agree more with the conservative dissenters in this case than I do with the liberal majority. My reasoning is almost identical to that found over at Legal Fiction, that “the constitutional text in question…in Kelo explicitly restricted [the] power” of legislatures to take property from citizens. Like Legal Fiction’s anonymous author, I believe the Constitution requires the judiciary to review with heightened scrutiny any government action that goes beyond a constitutional restriction of governmental power. The problem with Kelo, then, is that despite the clear restriction on governmental power in the Fifth Amendment, the Court decided to be deferential to governments that engage in eminent domain seizures. According to Kylo, governments should have such power because they know what’s best for their constituents. But this is wrong headed, for the simple reason that when government is restricted by a provision in the Constititution, that same government should not have the power to determine how its power will be limited.

Secondly, although the opinion does facilitate a liberal/progressive agenda of spurring economic development in historically depressed areas, it ignores another—and, I would argue, far more important—tenet of progressive constitutional jurisprudence: that the Constitution was intended to protect those who lack poltical power. And when you’re in the realm of economics (which is what the takings clause deals with, i.e., property) the politically powerless are, of course, the poor. Justice Thomas (of all people) noted this problem in his dissent:

[E]xtending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect “discrete and insular minorities,� United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4 (1938), surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects.

Although it’s a little strange I find myself in agreement with Justice Thomas, I have to say that he did get it right there. Like I said, I am a strong believer in economic redevelopment and the potential it has for turning around historically depressed areas. But like all other government action, government-led economic development cannot displace the individual rights of the people it was intended to help. Had Kelo been decided differently, governments like the one in New London would be forced to protect the rights of its citizens; more importantly, they would be required ensure that its eminent domain seizures were in fact exercised for the public good. Under this opinion, that simply will not happen.

Mowing again ::
narrative, personal — No Tags
3:21 pm

If you pay attention to my Flickr page, you might already know that I spent yesterday mowing the lawn up in Topsham. Temperatures were in the low 90’s and the sun was shining, so the work was pretty brutal. But I did get a good start on the mowing process, which is good. (Note: I know from past experience that this is a long, arduous process. But thankfully I have a better lawn mower this time around.)

But now I’m sore. Mowing the lawn for the first time this late into the season entails a two-step process. First, I have to weed wack the tall grass so it’s short enough to mow. Then I go over the same grass with a mower. Finally, I have to rake all the clippings up and toss them in the compost heap. Doing that work requires a lot of muscles I’m not used to using, so needless to say I’m pretty sore today. Combine that with high temperatures and humidity again today, and you have me not doing much at all.

June 24, 2005

And the final word ::
weird — tagged and
12:18 am

The final word in favor of mindless male domination of automotive racing goes to Bernie Ecclestone, the head of Formula One racing, who was able to get the following throw-away line into an interview with Sports Illustrated:

He told Autosport racing magazine in 2000 that women could not compete in Formula One, but if one did, “she would have to be a woman who was blowing away the boys. ... What I would really like to see happen is to find the right girl, perhaps a black girl with super looks, preferably Jewish or Muslim, who speaks Spanish.”

Mind you, this was after he reiterated his contention that “[w]omen should be all dressed in white like all other domestic appliances” to Danica Patrick, the first superstar of Indy racing in who knows how long. Could it be that Danica Patrick’s success has fundamentally changed the gender dynamic of automotive racing? Judging by what seems to be the media’s newfound discovery that Ecclestone is certifiably insane, I certainly think so.

June 10, 2005

Rethinking the Filibuster “Compromise” ::
legal — tagged , , and
12:53 pm

So, I’ve been rethinking my position on the filibuster deal. Although when the deal came out I was optimistic, I’ve all but decided that it was in fact not really much of a deal at all, that it was in fact something more like what The New Republic described. What’s the source of my change of heart? See Political Animal:

Two of the five were shoo-ins, so what [Senator Lindsey] Graham was telling us was that of the three controversial nominees (Owen, Brown, and Pryor), Republicans themselves would end up killing at least one of them. So how did things turn out?

I’ll tell you how things turned out: all the passed through. You know, much of my support of the compromise was based on an assumption that it was going to actually mean something. But clearly I was wrong. I really hate when I look back on my past optimism and realize that I should have been more cynical about things.

Ah, well. Maybe the New Republic was right. But at least I can sleep calmly knowing that an aggressive Irish Setter won’t be on the federal judiciary any time soon.

June 4, 2005

Deep Throat Side Note ::
legal — tagged , , and
1:38 pm

I’ve been only half interested in the Deep Throat revelations of the past week. Sure, Watergate was a fascinating story to follow—I found All the President’s Men a truly compelling book—but my personal opinion is that the identity of Deep Throat is not nearly as important as the fact that he existed. It could be that because Mark Felt was in the FBI the story changed somewhat, but my sense at this point is that it will only add a new gloss to the story rather than substantively change it.

But I could be wrong—I guess we’ll have to wait to see how History regards the story. Or at least we’ll have to wait for the book Bernstein and Woodward say they are working on comes out.

One interesting side note to the whole story is the ongoing relationship between Mark Felt and Richard Nixon. Namely that Nixon spoke on behalf of Mark Felt when Felt was “charged with illegally authorizing government agents in 1972 and 1973 to break into homes without warrants in search of anti-Vietnam War bombing suspects from the radical Weather Underground organization.” Huh. To me, even more interesting than the fact that Nixon unwittingly threw his support behind the guy who arguably was instrumental in ending his presidency is the fact that Felt who is regarded by many as a hero for what he did, was also engaged in domestic espionage activity that has been widely criticized. See generally the Church Committee Reports. Although I definitely I think Mark Felt did the right thing under the circumstances by leaking information to the Post, I think people should maybe pause before they call him an American Hero.

PS: Reagan pardoned Felt:

Felt was subsequently convicted and fined $5,000. But five months later, President Ronald Reagan pardoned Felt on the grounds that he had “acted on high principle” to bring an end to the terrorism threatening the nation.

This Week ::
personal — tagged , , and
1:15 pm

So, that was a long week.

I got through my first four days at work without incident. There were a couple of bumpy parts, of course, like having to set the alarm every evening before I went to and having to get up unreasonably early for a dentist appointment on Thursday, but I survived all of those. I was also able to get a full night’s rest last night, so I even feel clear headed as I write this.

Speaking of today, I came in to New Hampshire this morning to get new tires for Jessamyn’s car. That was no problem at all. Though I went to a Tire Warehouse, where they don’t have any hydraulic lifts, they just lift your car up using a series of jacks. A little weird, I must say. Now I am currently in West Lebanon, taking advantage of the open WiFi cloud and the free coffee refills at the local Panera. Jessamyn has been down at a library conference in Rhode Island for the past few days, so I’ll be heading off to pick her up from the bust station in a couple of hours. Then we’re off to have dinner with some friends who live somewhere in New Hampshire, I’m not sure where. Sometimes, I hear that weekends are relaxing, but not this weekend, not for us, anyway.