Supreme Court Justice Kennedy Teaches Wrong Lesson On Freedom Of The Press

from the except-for-when-it-comes-to-supreme-court-justices dept

You would think that a Supreme Court Justice (and the people who work for one) would know better than to tell any sort of news publication -- even a high school newspaper -- that he needed to approve any articles written about a speech he gave, but that appears to be exactly what happened with Justice Anthony Kennedy and a recent speech to Dalton High School students in Manhattan. The people who work for Kennedy are now trying to claim that this was just to make sure the quotes were accurate, but those who work for the school paper say they were under the impression they needed full approval of the article first. It's amazing that whoever made the request (whether Kennedy himself or some staffer) didn't realize how bad that would look, especially from a Justice who has always been a strong proponent of strong First Amendment rights...

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Justices Show Supreme Skepticism About Broad Business Model Patents

from the good-for-them dept

You never know how they'll actually rule, but in hearing the oral arguments in the Bilski case over the patentability of business models (and, most likely, software), one thing became quite clear: nearly every Supreme Court Justice was seriously skeptical of outlandish patent claims. We've noted, of course, that the Supreme Court over the past few years has taken a renewed interest in patent law, pushing back time and time again against the Federal Circuit (CAFC), who in the 80s and 90s seemed to take the position that more patents was always a good thing. Sensing that, with Bilski, CAFC even pushed back on its own earlier rules, and it appears that the Supreme Court at least agrees that the era of crazy business model patents should end now. The full transcript is worth reading, but Justin Levine did a nice job summarizing some of the highlights in the questioning by the Justices:

JUSTICE GINSBURG: But you say you would say tax avoidance methods are covered, just as the process here is covered. So an estate plan, tax avoidance, how to resist a corporate takeover, how to choose a jury, all of those are patentable?

MR. JAKES: They are eligible for patenting as processes, assuming they meet the other statutory requirements.

JUSTICE BREYER: So that would mean that every -- every businessman -- perhaps not every, but every successful businessman typically has something. His firm wouldn't be successful if he didn't have anything that others didn't have. He thinks of a new way to organize. He thinks of a new thing to say on the telephone. He thinks of something. That's how he made his money. And your view would be -- and it's new, too, and it's useful, made him a fortune -- anything that helps any businessman succeed is patentable because we reduce it to a number of steps, explain it in general terms, file our application, granted?

MR. JAKES: It is potentially patentable, yes.

---

JUSTICE BREYER: You know, I have a great, wonderful, really original method of teaching antitrust law, and it kept 80 percent of the students awake. They learned things.[Audience laughter.] It was fabulous. And I could probably have reduced it to a set of steps and other teachers could have followed it. That you are going to say is patentable, too?

MR. JAKES: Potentially.

---

JUSTICE SCALIA: You know, you mention that there are all these -- these new areas that didn't exist in the past because of modern business and what-not, but there are also areas that existed in the past that don't exist today. Let's take training horses. Don't you think that -- that some people, horse whisperers or others, had some, you know, some insights into the best way to train horses? And that should have been patentable on your theory.

MR. JAKES: They might have, yes.

JUSTICE SCALIA: Well, why didn't anybody patent those things?

MR. JAKES: I think our economy was based on industrial process.

JUSTICE SCALIA: It was based on horses, for Pete's sake. You -- I would really have thought somebody would have patented that.

Of course, these are the same Justices that have been pushing back on the patent world for quite some time. What about the newer Justices? Turns out they were pretty skeptical as well. There were some questions about new Justice Sotomayor, who had been an IP litigator at one point, but seemed pretty skeptical of these sorts of patents:

JUSTICE SOTOMAYOR: So how do we limit it to something that is reasonable? Meaning, if we don't limit it to inventions or to technology, as some amici have, or to some tie or tether, borrowing the Solicitor General's phraseology, to the sciences, to the useful arts, then why not patent the method of speed dating?

MR. JAKES: Well, first of all, I think, looking at what are useful arts, it does exclude some things. It does exclude the fine arts. Speaking, literature, poems, I think we all agree that those are not included, and there are other things as well. For example, a corporation, a human being, these are things that are not covered by the statutory categories.

JUSTICE SOTOMAYOR: So why are human activities covered by useful arts?

MR. JAKES: Human activities are covered.

Chief Justice Roberts dug into the Bilski patent in question, and noted how ridiculously broad the claims were:

CHIEF JUSTICE ROBERTS: What -- I'm looking at your Claim 1, in Joint Appendix page 19 to 20. How is that not an abstract idea? You initiate a series of transactions between commodity providers and commodity consumers. You set a fixed price at the consumer end, you set a fixed price at the other end, and that's it.

I mean, I could patent a process where I do the same thing. I initiate a series of transactions with sellers. I initiate a series of transactions with buyers. I buy low and sell high. That's my patent for maximizing wealth.

I don't see how that's different than your claim number 1.

He went on to point out that some of what the patent seems to cover has been around since the 17th century (history buff, apparently). Anyway, you never know how the Justices will actually rule -- and there are big questions well beyond just "allow/don't allow" that will be the really important thing to watch for in the decision. Will they set up a new "test" for patentability? Will they exclude certain areas (business models? software?) from patent coverage? Will they come out with a very narrow ruling that just focuses on Bilski's patent and leave the bigger questions for another day? That's where things will get interesting. But, at the very least, it seems likely that the worst case scenario of saying a patent like Bilski's is valid is quite unlikely to be the end result.

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Kentucky's Attempt To Seize Gambling Domain Names Goes To State Supreme Court

from the waste-of-kentucky-taxpayer-dollars dept

A year ago, we were surprised to hear that Kentucky's governor was trying to seize the domain names of a long list of over 100 sites that had something to do with gambling. The governor was basing this on a Kentucky law that let the government seize "devices" used for gambling, even though none of the sites in question were based in Kentucky. The governor -- who many say did this to protect local Kentucky gambling operations -- compared these website to "a virtual home invasion." While a judge originally was going to allow the seizure, the state appeals court overturned the ruling, saying that it was clear that a domain name is not a gambling device.

Rather than back down, the governor pushed ahead and is using taxpayer money to appeal the ruling. Ragaboo alerts us to the news that the Kentucky Supreme Court is getting set to hear the case. It's difficult to see how the governor has much of a leg to stand on here. He's trying to seize the domain names of businesses operated entirely outside the state. Allowing such a seizure of domain names would set a horrendous precedent and create all sorts of problems. Hopefully the Kentucky Supreme Court sees this, and Governor Steven Beshear realizes it's best to give up this dangerous crusade.

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Supreme Court Refuses To Hear Cablevision Remote DVR Case: Good News, For Now

from the at-least-for-a-little-while dept

Well, here's a bit of good news this Monday. It appears that the Supreme Court has listened to the Solicitor General, and refused to hear the appeal concerning Cablevision's remote DVR offering. This is good for a variety of reasons. We've discussed how this is an important case on a variety of levels, but also a tricky one. The appeals court ruling got the right results (saying a remote DVR was legal, and that buffer copies were not infringing) but really had to twist itself into a knot to explain why -- demonstrating just how ridiculous copyright law is these days.

The basic facts are quite straightforward. A DVR, such as a TiVo that sits next to your TV is perfectly legal. Time shifting content has been shown as legal, and not infringing by the courts in the past. That's great. However, Cablevision effectively built a remote DVR. It sat in Cablevision's datacenter, rather than next to your TV. Otherwise, it did exactly the same thing. From a user's perspective, it was almost identical. You could save shows and forward and rewind shows. Functionally identical. Hollywood insisted that by moving where the box lived, it somehow made it illegal, coming up with absolutely ridiculous arguments about how it's like Cablevision setting up a gun for someone to shoot by pushing a button -- ignoring that in the equivalent reality, no one's getting shot, they're just doing something that's already been found to be perfectly legal (time shifting).

That said, this question is hardly over. While the appeals court decision came to the obviously correct conclusion, the fact that it did so in such a roundabout, and at times tortured, way, actually suggests that we'll be seeing this issue come up elsewhere in other courts in some manner. Eventually there's likely to be a split of some sort, and perhaps then the Supreme Court will weigh in. Still, given how screwed up the Supreme Court seems to get when it comes to copyright, delaying that seems like a good thing. It's quite strange that the Supreme Court seems to do such a good job with patent law, but gets totally twisted around when it comes to copyright law. Still, in the meantime, Cablevision can move forward with its remote DVR, and at the least, folks in the Second Circuit can rest assured that buffered copies are not infringing.

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Supreme Court Won't Hear Case Over Computer Tech's Right To Search Your Computer

from the older-ruling-stands dept

A few years back, we wrote about the case where a guy was arrested for possessing child pornography after techs at Circuit City found child porn on his computer, while they were installing a DVD player. The guy insisted that the evidence shouldn't be admissible since the techs shouldn't have been snooping through his computer -- and a lower court agreed. The appeals court, however, reversed, noting that the guy had given Circuit City the right to do things on his computer -- including testing out the newly installed software (which is how the tech claims he found the video). The guy appealed to the Supreme Court, who has declined to hear the case, meaning that the ruling stands for the time being. So, basically, if you hand your computer over to someone else for repairs, at least in some jurisdictions, they may have pretty free rein in terms of what they're allowed to access on your computer.

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Supreme Court To Review Whether Business Models And Software Are Patentable

from the this-should-be-interesting dept

While not a huge surprise, it's worth noting that the Supreme Court has agreed to take the Bilski case, which has received plenty of attention. If you don't recall, last year, the appeals court tried to further define what was patentable when it came to things like business models and software -- which many had considered to be a wide open field for patenting since 1998 and the State Street ruling. Of course, there's been a lot of controversy (and plenty of confusion) over the Bilski ruling, with some insisting that it really wouldn't impact software and business method patents, and others arguing that it will help kill off many such patents. However, pretty much everyone expected that the Supreme Court (with its recent interest in patent law) would weigh in. So, now we get to go through this battle all over again. Expect a lot of different parties to weigh in on how the Supreme Court should rule. Back when all the amici briefs were filed for the Bilski case, I put up a detailed post about the arguments for and against software patents, and I imagine that what we're about to see will be even more heated. Hopefully, the Supreme Court doesn't make things worse.

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Looking Over Judge Sotomayor's Tech Law Record

from the not-much,-but-it's-something... dept

With President Obama nominating Sonia Sotomayor to the Supreme Court, Thomas O'Toole noted that she would likely be the first justice with experience in "cyberlaw" cases prior to joining the court. As such, it's at least worth looking at what she's had to say -- though, as O'Toole notes, there's really not all that much to be gleaned from her decisions. None of the rulings stands out as especially troublesome and most seem pretty straightforward. The most notable is likely her ruling in Sprecht v. Netscape, where she ruled that contract terms online may not be enforceable when hidden behind a link and then requiring the user to scroll down the page. She found that a "reasonably prudent" user would not likely have gone through the trouble, thus suggesting that the contract might not be enforceable. This seems like a good ruling, and at least a hint that perhaps Sotomayor understand some online-related issues. But, overall, there's not much else to go on at this point.

Most of the other rulings are on minor cases, though she did issue the original district court ruling on the Tasini v. NY Times case that explored whether or not the Times was violating the copyright of freelance authors by reselling the articles they had written for the Times in an electric form. She ruled in favor of the NY Times, but the Supreme Court eventually ruled the other way. On this again, I think she made the right decision (and the Supreme Court got it wrong), but there were a lot of little nuances in that case that make it not a black and white case at all.

Meanwhile, some others have looked into Sotomayor's record on intellectual property and free speech issues, noting that she was once an IP litigator when she was a practicing lawyer -- though there doesn't appear to be much detail there, and much of the work seemed to be focused on trademark issues (which are less of an issue that patent and copyright issues). There aren't that many cases, but, again, it's something of a mixed bag. Her ruling that a book of Seinfeld trivia was infringing seems questionable (facts aren't copyrightable...), but she also rejected a playwright who claimed copyright infringement over a movie (though, such cases rarely get very far).

So... from all this, we can conclude not very much at all when it comes to the issues we tend to talk about around here.

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But How Would Steinbeck Feel About The Public Domain?

from the questions,-questions... dept

Earlier this year, we wrote about a lawsuit involving John Steinbeck's heirs and their attempt to regain the copyright on his works. The specifics of the case were very, very much inside baseball, having to do with interpretations of certain changes to copyright law. The specifics aren't really worth bothering with here (though you can drill down if you want to know). The news this week was that the Supreme Court rejected the appeal by Steinbeck's heirs, meaning that the appeals court ruling stands and the heirs don't get the copyrights back. However, what struck me as most interesting was the statement those heirs released:

John Steinbeck's granddaughter, Blake Smyle said, "This is about family. My grandfather would be deeply saddened to know that his contributions are now in the hands of strangers."

Mr. Steinbeck vows to continue to seek proper delegation of his father's legacy and to press forward on behalf of the families of other authors similarly situated to his position.

"If artists and their families cannot protect their rights, then everyone will ultimately suffer."

Now... that all sounds good and righteous, but is completely misleading. After all, if copyright law hadn't been changed and copyright extended greatly, Steinbeck's works would be in the public domain by now (actually, quite some time ago). In fact, as far as Steinbeck knew, both at the time he wrote his works and at the time of his death in 1968, almost everything he wrote would be in the public domain by now (some of his later works would likely still be covered, but the vast majority would be public domain). So, I find it odd to have his heirs claiming that he'd be "deeply saddened to know that his contributions are now in the hands of strangers." After all, he would have expected exactly that. That also makes the final quote hard to square with reality as well. Steinbeck knew the deal he was making with the public domain when he wrote his works. In fact, most of his works shouldn't be protected at all any more. So how can his heirs claim that everyone will suffer if those works aren't protected?

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Supreme Court Tells Gov't It Can't Use ID Fraud Laws Against Illegal Immigrants

from the stretching-the-law dept

Apparently, the Federal Gov't has been using an ID fraud law that was passed a few years ago not to go after just those copying the identity of others for the sake of fraud, but illegal immigrants using fake IDs. The two scenarios are entirely different, but the Feds were quick to use the law against the illegal immigrants, as it was an easier tool to use than to go through the standard process of dealing with illegal immigrants. Now, no matter what you think of illegal immigrants and how they should be dealt with, we should all be concerned when the government is stretching the intention of a law beyond its clearly stated purpose... and the Supreme Court seems to agree. It's now told the government that it clearly went beyond the boundaries of the law in using it against immigrants. The court points out that the law is pretty clear that the person charged under the law must knowingly take the identity of someone else, but totally made up IDs don't appear covered by the law at all, because the law isn't intended for fake IDs... it's intended to deal with those defrauding others by taking their identity.

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Supreme Court Justice Scalia Given Lesson In Internet Privacy

from the not-an-issue? dept

BoingBoing points us to an interesting story involving Supreme Court Justice Antonin Scalia, who apparently gave a recent talk questioning the need to protect privacy online. That caught the attention of Joel Reidenberg, a law professor at Fordham, who teaches an Information Privacy Law class. As part of that class he includes an assignment for the class to try to dig up information on someone online, in order to prove how much information is out there. Last year, he chose himself. This year, given Scalia's comments, he had the class put together a dossier on Scalia, which was not released publicly, but did include a bunch of private info about Scalia that was dug up online. Apparently Scalia was not amused, saying:

I stand by my remark at the Institute of American and Talmudic Law conference that it is silly to think that every single datum about my life is private. I was referring, of course, to whether every single datum about my life deserves privacy protection in law.

It is not a rare phenomenon that what is legal may also be quite irresponsible. That appears in the First Amendment context all the time. What can be said often should not be said. Prof. Reidenberg's exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any.

Now, to be fair, Scalia does have a point that not every single datum about anyone's life should be considered private. But it's equally silly to lash out and call the decision to give the assignment "abominably poor judgment." That seems like Scalia is suggesting security through obscurity is reasonable, and exposing why it's not is poor judgment. It's hard to see how that makes sense.

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Supreme Court Says FCC Can Fine Fleeting Expletives... For Now

from the next-up,-first-amendment-question dept

The FCC, under former chair Kevin Martin, suddenly took a much greater interest in fining network TV broadcasters for "fleeting expletives" -- generally live performances in which someone uttered a curse word. Prior to that, the FCC had generally ignored such "fleeting" uses and focused on more significant violations. So, when the FCC suddenly changed its policies and fined some TV networks, they sued, complaining that the change was arbitrary. In 2007, an appeals court agreed, calling the policy arbitrary and capricious. However, the Supreme Court has now reversed that, saying that it's within the FCC's power to make the determination of what policy it follows in regulating broadcast content.

However, the case is far from over. So far, this part of the case has only focused on whether or not the rule change was allowed. What hasn't been explored is that, if the rule change is allowed, is that new rule unconstitutional (as a violation of the First Amendment). That's the real question -- so all this stuff about whether the policy was arbitrary and capricious was more like the opening act for the First Amendment headliner that's about to happen. The case has now been sent back to the appeals court, where the free speech implications will be reviewed.

In the meantime, I'm still wondering why the liability should be on the broadcasters in the first place. If Cher or Nicole Ritchie utter a curse word while on live TV, how is that the network's fault? Beyond just the free speech questions, I'm trying to figure out why the liability should be on the networks at all.

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Congressional Rep. Webcasts Hearing With Supreme Court Justices To Show How Easy It Is

from the just-like-that... dept

After a bit of a (very public) back and forth, a district court in the high-profile Tenenbaum case was recently told that it cannot broadcast courtroom proceedings online, saying that it violated certain rules. This is something that Congress could change... and it sounds like some in Congress really are interested in doing so. Rep. John Culberson, an early supporter of using tools like Twitter and Qik to communicate with constituents, apparently pulled out his camera phone in the middle of a hearing with Supreme Court Justices Breyer and Thomas and started broadcasting live to his website, trying to show them how easy it is to do these days, and why they should allow broadcasting of court proceedings in action.

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Supreme Court Won't Consider Virginia Anti-Spam Law

from the spammers-have-rights-too dept

The US Supreme Court has passed on the state of Virginia's appeal to keep its anti-spam law in place. The state's Supreme Court had ruled the law was unconstitutional, following the appeal of a spammer that had been convicted under it. He argued that the law overstepped the boundaries by outlawing non-commercial, as well as commercial spam, including things like political and religious speech that have generally been protected under the First Amendment. By not taking up the case, the high court appears to be extending that protection to cover spam as well. On balance, that's probably a good thing -- particularly as this "loophole" is unlikely to really make the spam problem any worse.

Carlo Longino is an expert at the Insight Community. To get insight and analysis from Carlo Longino and other experts on challenges your company faces, click here.

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AT&T Didn't Violate Antitrust Laws In Wholesale DSL Pricing

from the really? dept

Well, this is certainly interesting. Just as the US government seems to be hinting at the possibility of declaring Google a monopoly, the Supreme Court has overturned a lower court ruling on whether or not AT&T violated antitrust laws in pricing its wholesale DSL lines at a price above its retail rates (i.e., other DSL providers could resell AT&T DSL lines, but they would have to price them significantly higher than AT&T or lose money). The Supreme Court has now said that it's not an antitrust violation to have priced line sharing in this manner.

I can certainly see the arguments for both sides in this ruling. In theory, AT&T should have the right to price its offerings wherever it wants. But, that ignores that AT&T does have a monopoly in terms of government granted rights-of-way and subsidies, such that no other provider can realistically compete without similar government benefits. This isn't because AT&T grew into a monopoly, but because the government granted them those rights and subsidies. In the end, though, as much as I think we should encourage competition via line sharing, I think the Supreme Court made the right decision, in realizing that this isn't an antitrust issue, but a regulatory issue. When the gov't granted AT&T rights of way and subsidies, it could have (and probably should have) extracted certain requirements concerning line sharing. In not doing so, it implicitly allowed AT&T to price such line sharing at whatever ridiculous rates AT&T wanted. The solution isn't via an antitrust lawsuit as it is in making sure that granting such rights of way and subsidies comes with reasonable line sharing rules.

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Getting Into The Supreme Court's Mind On Software Patents...

from the reading-the-tea-leaves dept

With the CAFC's decision on Bilski being appealed to the Supreme Court, it's worth thinking about how the Supreme Court might actually view the question of software and business model patents. While patent system defenders go through all sorts of twists and turns to explain why software should be patentable, Tim Lee has a detailed explanation of why software should not be patentable, based on earlier Supreme Court precedent. It's a great read (though, frankly, Ars Technica's habit of breaking stories like this up into multiple pages, without a single-page option is annoying) that highlights why there's a decent chance that the Supreme Court would uphold the CAFC's ruling on Bilski if it chose to hear it. Of course, you never know until it happens, and while the current court has been good about limiting the more ridiculous aspects of the patent system over the past few years, we shouldn't be surprised by bad rulings anymore. That said, who knows if the Supreme Court will even hear the case -- or if it will prefer to see how things play out based on the Bilski ruling, and wait for an alternate case to come up before addressing the issue of software patents.

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Ding Dong, COPA Is Dead

from the dead,-dead,-dead dept

The federal government has been trying to pass a law to "protect the children" online for ages. First there was the CDA, the Communications Decency Act, which was struck down as unconstitutional. Then, there was COPA -- the Child Online Protection Act. It tried to be more narrow... but was still a very questionable law, with rather vague wording. It bounced around the courts for years, including hitting the Supreme Court twice -- which sent it back to lower courts both times. Last summer, the appeals court knocked it down again, and today the Supreme Court refused to hear the appeal... meaning that COPA is about as dead as can be. This is definitely a big win for free speech online.

But, of course, just as COPA followed the CDA, have no fear that politicians looking for headlines and photo ops about how they "protect the children" are working hard on new legislation -- such as DOPA -- the Deleting Online Predators Act -- and will continue to push the boundaries of what sort of speech is allowed online. All this really does is waste taxpayer money on unconstitutional attempts to restrict free speech. And, for what? Recent studies have shown time and time again that the threat to children online is relatively small compared to the hype -- and the best response is educating children, rather than restricting speech for all. Somehow, though, I doubt politicians will recognize that any time soon -- especially when lobbyists for companies that sell filtering tools keep beating down their doors with stories of the horrors of online content.

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Copyright Alliance Begs Supreme Court To Make Remote DVRs Illegal

from the we-prefer-our-screwed-up-copyright-laws dept

You may recall that the Copyright Alliance is a group that is basically the personal vehicle of Patrick Ross, a copyright maximalist, who has been known to twist copyright law to ridiculous extremes on a regular basis. He's the guy who has claimed that fair use harms innovation, that government-backed monopolies in copyright represent a free market and any attempt to actually free up the market and remove government backed monopolies would be unnecessary regulation that would result in market failure. Ross also sent all of the presidential candidates one of the most ridiculous surveys ever on their views on copyright, that was written in an extremely leading "and when did you stop beating your wife" style.

With such extreme and twisted views, it's no surprise that Ross has lined up a bunch of big entertainment companies to back him as he goes around trying to convince politicians that day is night and up is down when it comes to copyright -- but now he's moved on to trying to convince the Supreme Court as well. As you may recall, back in August there was an extremely important Appeals Court ruling that noted that Cablevision's remote DVR setup did not infringe on copyrights. The ruling pointed out the rather obvious troubles that would occur if we interpreted copyright laws the way copyright holders wanted to. It's clear that DVRs, like TiVo, are perfectly legal in the home. Time shifting shows has been found, quite clearly, to be legal. Cablevision's remote DVR is effectively the same exact thing. The only difference is that the DVR is stored at Cablevision data center, rather than at someone's home. The ruling, quite clearly, demonstrated how twisted copyright law has become, as it is patched up each time some new technology comes along.

The importance of this ruling cannot be understated, however, as it will enable many important online services that will be tremendously useful. Needless to say, copyright maximalists in the entertainment industry don't like that. They prefer the way things used to be, and want the law to force the market never to change. So, before the Supreme Court has even decided whether or not to hear the appeal on the case, Ross's Copyright Alliance has already begged the Supreme Court to overturn the ruling -- the first time the Alliance has become involved in any lawsuit. The amicus brief itself, basically uses Ross's typical logic: copyright is good, therefore, making companies pay multiple times for different types of licenses to use content in more ways must be even better!

Hopefully, the court recognizes the logical fallacies in the filing. Preventing this service will not help anyone. The entertainment industry that Ross claims to represent thinks that this will get companies like Cablevision to pay them yet again for content it already licensed. But, the reality is that they'll just move on. People will instead keep buying TiVos or home DVRs, and the potential for truly new and unique services that make the entertainment company's content even more valuable will be greatly diminished. Ross and the content companies falsely believe that the old model is the best, and that content should be paid for again and again, every time it's accessed. Basic economics tells you that this is wrong, and that protectionist policies -- such as what Ross champions -- only shrinks markets and hurts just about everyone.

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Is A Conviction Constitutional If It's Based On Evidence From An Unconstitutional Search?

from the buttle-or-tuttle? dept

In a case where the legal implications should thrill any fans of Terry Gilliam's movie classic Brazil, the Supreme Court is set to examine if it's constitutional to convict someone, based on evidence that was only collected due to bad data in a government database. There's no question that a search of someone due to bad data in a database is unconstitutional, but the question is whether or not what's found in that search can then be used to charge someone. In this case, a bad (obsolete) database entry in a county database resulted in the search of an individual's car, where drugs and a firearm were found. This resulted in a conviction and jail time, but the search itself wasn't constitutional, because the data was incorrect. The appeals court let the conviction stand, oddly arguing that throwing out the conviction wouldn't put much pressure on governments to keep their data clean. The court also argues that anyone convicted as a result of such bad data, should simply file a separate, civil, lawsuit against the government. Of course, it seems like the bigger issue should simply be on the constitutionality of using any unconstitutionally obtained evidence in a lawsuit.

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Supreme Court Decision On Guns May Cut Promoting Progress Out Of The Constitution

from the promote-the-progress dept

I was debating whether or not to write anything about this, but William Patry has done a good job discussing how the Heller case may impact copyright, and it's something I was concerned about, so it should be discussed. No matter what your thoughts on "the right to bear arms" (which was affirmed as an individual right in the Heller decision), it may come back to cause trouble for those of us who believe that intellectual property has gone too far and does not "promote the progress."

As I've pointed out multiple times, one of the big questions concerning whether or not intellectual property law should be strengthened or weakened is based on how you parse the clause in the Constitution that enables Congress to create the IP system:

"The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

By my reading, that means that if the act of securing exclusive rights for a limited time does not promote the progress of science and the useful arts, then it is not covered by the Constitution. That is, the first part of the clause is defining under what conditions (to promote the progress...) it is okay to do certain things (secure exclusive rights). Thus, any intellectual property system that is shown not to promote progress (or worse, to hinder it) is by definition unconstitutional. Others, however, read that first part "promoting the progress" as a sort of "preamble" discussion. Thus, their reading is that securing those exclusive rights for a limited time, by definition, "promotes the progress."

So, what does the Heller decision on guns have to do with all of this? Well, as some in our comments pointed out way back in March, the key to the Heller decision was how the court interpreted part of the clause: "Because a well regulated Militia is necessary to the security of a free State...." If it interpreted that as meaningless preamble, saying that the right to bear arms had nothing to do with "a well regulated militia" then it opens up some pretty serious questions about constitutional interpretation. As Patry notes, the court can now treat sections of the Constitution it doesn't like as preamble, rendering them meaningless.

Again, so whether or not you're happy with the way the court decided the Heller case, the fact that it has no problem deciding that a clause in the Constitution can be ignored as "preamble" could have very bad consequences for those of us pointing out that dangerous innovation-hindering intellectual property systems are against the Constitution. Hopefully, the courts would still recognize that this clause is relevant and not meaningless -- but they now have the necessary tools to claim that promoting the progress is meaningless and has no bearing on whether or not a particular intellectual property system is constitutional.

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Supreme Court To Investigate If AT&T Is Violating Antitrust Laws With Wholesale DSL Pricing

from the competition? dept

In most cases, antitrust rules seem fairly bogus. They often are used to try to punish companies for being successful, even if they're not actually abusing any kind of monopoly situation. However, there are some cases where antitrust laws become a lot more interesting, when it comes to governments effectively granting monopoly rights to certain companies. That's what's happened with many telco services, where the government has basically provided monopoly "rights of way" to certain companies to put down infrastructure in places that no other company can. These rights of way were supposed to come with "common carrier" status, that would require the provider to allow equal access, without discrimination, even to companies that might "compete" in some manner or another with the core infrastructure provider. A few years back, however, the FCC made sure to classify broadband services as information services rather than telco services -- even if they were using the same infrastructure. This was great for the telcos, since information services weren't subject to common carrier restrictions like telco services were.

Yet, those broadband services still benefited from those rights of way, and they used their new found lack of restrictions to raise wholesale prices to smaller ISPs who offered services on their networks. A series of lawsuits followed, including an appeals court ruling that found that AT&T was abusing monopoly rights to offer prices that were simply out of line with market pricing -- making it effectively impossible for any other provider to compete. AT&T has appealed and now the Supreme Court has agreed to hear the case. This could be very important, as it could force a company like AT&T, which relies on these government granted rights of way, to offer up access to their network to potential competitors who could offer more reasonably priced services. This also could have a major impact on both the overall competitiveness of broadband in the US as well as network neutrality -- since having more competition would make it harder for AT&T and others to violate net neutrality.

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