Andy on the Road

11 February 2010

Litigation Roundup

Filed under: intellectual property,lawsandsausages,thecommonlaw — Andy @ 9:07 pm

I’ve been taking advantage of the week-long Hoth-ian situation down in DC to catch up on copyright and music industry news. A lot of my time on this was spent doing the who’s-suing-who IP and entertainment litigation roundup. There aren’t a lot of crazy legal theories here, so I don’t have much in the way of commentary or insight (or better still, links to those with insight). This is a little more gossip based. Enjoy:

  • The White Stripes are alleging that the US Air Force Reserves ripped on “Fell In Love With A Girl” on a Super Bowl ad. (THR, Esq.)  The Air Force ad can be found courtesy of Huffington Post. The composer responsible for the Air Force ad has since apologized. (Paste)
  • Up in Boston, Pizzeria Regina is suing South Weymouth pizza shop Capone’s under trademark theories. (Universal Hub)
  • Sly Stone is suing his former manager for a whole lot of money. A whole lot of money. (Billboard)
  • Slowly working up the courts since October is a lawsuit between Domino Records and A&M Records over whether Guns ‘N’ Roses ripped on Ulrich Schnauss on Chinese Democracy. (Billboard | Justia)
  • Two artists are suing the Black Eyed Peas over the “Boom Boom Pow” song. (THR, Esq.)
  • And last, but certainly not least, the first of many predicted lawsuits against that “Pants on the Ground” song. (This one’s called “Pockets on the Floor!”) (Techdirt)

On a closing note, social video website Veoh is going out of business. Veoh has been in court with Universal Music Group over whether the website qualified for DMCA safe harbor protection. The case is frequently cited as the tracer shot for the much heftier Viacom/YouTube case presently in discovery. While Veoh won summary judgment in September, UMG was planning an appeal. Commentators are now wondering if the UMG lawsuit drove Veoh into closure.  Billboard found a Veoh board member tweeting exactly that, but Ben Sheffner casts some doubt on that claim, noting the prior case Veoh has against adult entertainment company  iO Group running coterminous with the UMG case. In any event, Veoh is going away, and I would guess any appellate-level review of the Veoh/UMG case is probably going with it.

Update: Techdirt opens up the question of what’s to happen with the litigation in light of this news.

Update 2 (2/15): Eriq Gardner over at THR, Esq. (one of my new favorite blogs) offers his prediction for the Veoh case:

If Veoh declares Chapter 7, a bankruptcy judge would issue an automatic stay in the case. UMG would likely file a motion with the bankruptcy court seeking relief from the stay to perfect its appeal. The trustee would engage legal counsel and make financial arrangements to cover the costs of defending the case before the 9th Circuit.

We’re betting that all of this happens. The requiem on Veoh is now being written, but the company could continue to play a significant role in helping shape copyright liability for tech companies. (We wouldn’t even be surprised to see Google acquire Veoh just so it could share in the fun of the action.)

The Chapter 7 declaration has already happened. We’ll see how the rest pans out.

25 January 2010

US DoJ approves Live Nation / Ticketmaster Merger

Filed under: followup,lawsandsausages,music — Andy @ 5:13 pm

Wired has the scoop.  While this is not dispositive should someone eventually sue under a civil antitrust theory, it means the government won’t block the action directly.

The modified agreement – requiring the licensing of Ticketmaster’s software to AEG and some other “suitable company” for five years – rings a little hollow to me.  Reservations aside, I do hold out hope for the clause strictly prohibiting the retaliation against venues choosing to use another ticketing service or promoter when booking a Live Nation artist.

But there’s an underlying vertical integration concern that seems unanswered by Wired’s piece. After all, Live Nation presently owns about a hundred venues throughout the United States, and holds management arrangements with dozens more.  If the settlement is structured so that venues are left with the choices as the “consumer” in this market, and LN/TM owns the venue, can we really expect the venue to not use their own ticketing agents and concert promoters?  How are promoters expected to compete for venue business with other promoters when the other promoters own the actual venues?

The FTC and DoJ will have to watch this settlement like two hawks to keep the collusion practices out of the business.  I’ll be sure to post a link should I uncover it in my research. I believe it will be published for an open comment period in the Federal Register.

Update: After reading the DoJ press release I was pleased to find the following information:

The settlement also sets up firewalls that protect confidential and valuable competitor data by preventing the merged firm from using information gleaned from its ticketing business in its day-to-day operations of its promotions or artist management business.

That is the principal concern I had with the settlement, as I expressed here.  I know we do this in other industries, but I’m still wary of a practice that allows a conglomerate to conduct both sides of an exchange and rely on ethics and a settlement alone to keep them from using their combined information to an unfair advantage.

Update 2 (1/26): The Future of Music Coalition points to an excellent opinion in the LA Times from yesterday, which adds this about the provisions guarding competitor promoters and ticketing companies:

Those provisions will only be effective, however, if they’re well enforced. There’s no structural protection. Consequently, the reaction to the deal from opponents of the deal was muted praise. John D. Breyault of the National Consumers League, part of the coalition that opposed the merger, said his group would have been happier had the Justice Department sought to block the deal. “The conditions that they have imposed on this merger are not insignificant,” he added, “if DOJ is committed to strong and enduring enforcement of the consent decree.”

The piece also adds a quote from Seth Hurwitz, owner of DC’s beloved 9:30 Club, which is worth posting here:

It seems the DOJ has created a healthier atmosphere for venues to explore other ticketing providers. However, unless any promoter is free to use any ticketing company they wish, at any venue, at any time, then nothing has been solved. In America, no one should be forced to do business with a company. If one ticketing company has a lock on an arena for instance, I could still be forced to have my competitor sell my tickets, which is an issue for a host of reasons including they can gather all my financial information and my customers’ information. We’re waiting to see how the DOJ will address this. The DOJ’s intent to spur competition is there, but it must be backed up with genuine mechanics to ensure independent promoters can try to compete on a level playing field.

18 January 2010

Excellent documentary “Copyright Criminals” to air on PBS tomorrow night

Filed under: copyleft,intellectual property,lawsandsausages,music,oyez — Andy @ 3:32 pm

While my friends in MA may have other coverage to keep them glued to the screen, if you find yourself with some free time tomorrow night you should definitely catch Copyright Criminals, a documentary by Kembrew McLeod and Benjamin Franzen. I got a chance to see this as part of the Future of Music Coalition Policy Summit back in October and found it inspiring, entertaining, and thought provoking. (So thought provoking, in fact, that an entire conference panel was dedicated to discussing it the next day, and it lead me to draft a law journal article on this topic.)

From the movie’s website comes this description:

This documentary traces the rise of hip-hop from the urban streets of New York to its current status as a multibillion-dollar industry. For more than thirty years, innovative hip-hop performers and producers have been re-using portions of previously recorded music in new, otherwise original compositions. When lawyers and record companies got involved, what was once referred to as a “borrowed melody” became a “copyright infringement.”The film showcases many of hip-hop music’s founding figures like Public Enemy, De La Soul, and Digital Underground—while also featuring emerging hip-hop artists from record labels Definitive Jux, Rhymesayers, Ninja Tune, and more.

It also provides an in-depth look at artists who have been sampled, such as Clyde Stubblefield (James Brown’s drummer and the world’s most sampled musician), as well as commentary by another highly sampled musician, funk legend George Clinton.As artists find ever more inventive ways to insert old influences into new material, this documentary asks a critical question, on behalf of an entire creative community: Can you own a sound?

As I argue in my note (as much of which I will post as I can in the spring), sampling has become an integral part of our musical identity, and extends naturally from earlier traditions of borrowing which go as far back as music itself. The sampling clearance process as a business is plagued with problems which stile creativity. But this is a complicated business with many, many players, and each wants both a say and a cut of the profits. Copyright Criminals does a great job highlighting many of the key players here: the samplers, the sampled, and the various agents and managers involved in the sampling process.

The documentary also has a DVD release slated for 26 Jan, and as Creative Commons points out there will be a release party tomorrow night in Brooklyn (at the Brooklyn Bowl) with the likes of EL-P, Eclectic Method, and DJ Spooky.

Check your local listings for showtimes. (In DC: WVPT and WCVE-TV air at 10PM tomorrow, WETA airs next Sunday a midnight; in MA: MPBN, CPTV at 10PM tomorrow, WGBX World (‘GBH 44.2)  on Wednesday at 9AM, 3PM, and 8PM, NHPTV Saturday at midnight, Sunday at 11PM).

7 January 2010

What the U.S. could have celebrated on Public Domain Day (and what we can celebrate)

Filed under: copyleft,huh.,intellectual property,lawsandsausages — Andy @ 1:03 am

Copyright duration is always calculated relative to the calendar year, which means that every January 1st a new batch of works enters the public domain. We IP geeks mark the occasion by celebrating Public Domain Day (along with that other January 1st holiday). By entering the public domain third-party creators are now free to join the original author in disseminating, analyzing, selling, remixing, and doing all sorts of interesting things with the work; the work becomes part of our collective cultural identity.

… at least that’s what should happen. But as Ars Technica, Creative Commons, and public domain guru James Boyle all note, no published work in the United States will enter the public domain again for nearly another decade, thanks to recent copyright extensions. So while other countries are enjoying increased access to hundreds of works, we will still be waiting for the works of Robert Frost, George Gershwin, Cole Porter, and Aldous Huxley to come down from their 95 years in copyright. Assuming the work was published in compliance with the formalities the Copyright Act had at the time, no work published after 1923 will enter the public domain until 2018.

You can click those links above to see the sad news about what we can’t use freely thanks to our vastly overreaching copyright laws. I’m here to tell you some good news. In fact, a small class of works did find their way into the public domain this year in the U.S.. But don’t get too excited.

To understand what entered the public domain you need to know a little history. For over a century the law in the US recognized a “common-law” perpetual copyright for unpublished works. While U.S. copyright law kicked in and the duration clock began ticking whenever a work was published, the author forever maintained the exclusive right to publish their work first. When Congress revised the Copyright Act in the 1970s they sought to do away with this (as we were now adopting a new life-of-the-author-plus-some-years system for calculating duration), but didn’t want to immediately inject all these unpublished works into the public domain. So the 1976 act provided a compromise, encouraging holders of unpublished work to publish. That compromise is 17 U.S.C. § 303, which grants copyright protection until 2047 (!!) for any work not published when the 1976 Act went into effect (January 1, 1978), but published between that point and December 31, 2002. After that, the unpublished work would enter the public domain in the regular life-of-the-author-plus-fifty-years cycle (extended to life+70 years in the 1990s).

So, any work whose author died in 1940 and was either published after 2002 or never published, entered the public domain on January 1st. So go make some cool mashups, all you people out there holding onto unreleased drafts by F. Scott Fitzgerald, Emma Goldman, Leon Trotsky, Alfred Ploetz, Paul Klee, Nathanael West, or Philip Francis Nowlan. Happy Public Domain Day.

5 January 2010

Clearing the Cobwebs

Happy 2010, all.

I’m back in DC after another lovely few weeks up in Massachusetts. I feel as though I’ve been out of touch with the world of current events, so I took a slice of my extended break to catch up on my RSS feeds. Here are a few stories that caught my eye. Once things settle down here a little bit I’ll start writing in earnest again.

  • Although I never wrote much about it on this blog for reasons I expressed here, I’ve been following the recent developments in the Sony v. Tenenbaum case. After the jury verdict came down and formal judgment was entered in December, much has been made of the constitutionality (and in some circles, the prudence) of the $675,000 verdict in Tenenbaum and $1,920,000 in Captiol v. Thomas. The team defending Tenenbaum have now filed a motion for a new trial on these grounds, arguing the verdict violated due process under St. Louis I.M. & S. Ry. Co. v. Williams and progeny. Predictably, Torrentfreak sees this as potentially diluting the lofty statutory damages used by the RIAA to scare its patrons into so many $3500 settlements, while Ben Sheffner over at Copyrights & Campaigns notes the conspicuous absence of any case that has found statutory damages (as opposed to punitive damages) to be violative of due process. UPenn was gracious enough to host an excellent back-and-forth between Sheffner and Pamela Samuelson on this exact subject, for the especially curious. Constitutional question aside, Ron Coleman over at Likelihood of Confusion gives a great wide-angle perspective on the whole affair, which I found rather refreshing.
  • Speaking of Mr. Sheffner, he posted up on Wired the 5 cases that defined music law for 2009. While I disagree with his analysis (I often do), he lays out exactly where we are in this field today: RIAA filesharing battles finding results with massive judgments against individuals, the MGM v. Grokster “inducement” theory finding some teeth in the Bit Torrent realm, and content creators clashing head-on with online service providers over DMCA safe harbors. (And Bridgeport v. Dimension Films is still good law, much to my chagrin.) And while we’re on the subject of Wired end-of-the-era lists, here are the top 10 cybercrimes of the decade.
  • Meanwhile, some law nerd circles – including the always excellent Volokh Conspiracy – are buzzing about the constitutional questions raised by the health reform legislation pending in Congress. The argument, according to those raising it, is that the mandate that all persons buy health insurance is an unconstitutional exercise of congressional power under the Commerce Clause. As I was discussing with my roommates tonight (GWU Law 2Ls, the lot of us), I just don’t see this argument flying under the modern-day Lopez test. Nevertheless, there appears to be a lawsuit waiting for ripeness in the wings.
  • On the music front, my friend Sawyer Jacobs’ fantastic music collective Underwater Peoples just released their winter sampler. For those of you that missed it, they made a good splash back in June with their summer analogue, including some rare praise from Pitchfork. Fully acknowledging my bias after spending a great summer with Mr. Jacobs last year as Berkterns, I think these guys are one of the coolest collectives to hit the scene since Elephant Six. And speaking of those cats, one of the first new issues to come out of E6 in what seems like years is a new Apples in Stereo / Olivia Tremor Control side-project, Thee American Revolution. Both the UP Winter Sampler and the Thee American Revolution albums have been in heavy rotation on the ol’ iPod over the past week or so. Well, those and the annual DJ Earworm United State of Pop mashup.
  • My buddy (and singer-songwriter) Brian Bergeron has gone all Kerouac on me and moved from his (and Kerouac’s) hometown of Lowell, MA out to San Francisco. While out there he’s been firing up the blog and commenting on music, media, and society – subjects close to both of our hearts. I am delighted to see him take up the issue of net neutrality (which he correctly identifies as a less-flashy-than-normal cause for artists, but extremely important), and wish him all the best on his adventures out there.
  • For Brian and my other music industry friends: take a moment to read Bob Lefsetz’s predictions for 2010 and beyond. It’s rather 30,000 feet and raises more issues than it solves, but I suppose those are the sort of characteristics that go with the future-predicting territory. I think he was dead-on to raise the potential Live Nation / Ticketmaster merger as the most significant event on the horizon this year. I’m studying antitrust law now, in part to help me wrap my head around this beast. My fellow industry wonks may also appreciate this recent interview of Donald Passman in the Berklee Music Business Journal, marking the release of the new seventh edition of his All You Need to Know About the Music Business.
  • On the lighter side, way back in November Wicked Local Brookline brought us the best use of federal stimulus money I’ve heard yet: a proposal to fix the MBTA 66 Bus.
  • My new favorite blog is the Legal Satyricon, brought to you by IP and First Amendment lawyer Marc Randazza (working in one of the most interesting places a First Amendment lawyer can work these days: the adult entertainment industry). Randazza is most recently famous for representing the owner of against an attempted WIPO takedown by Glenn Beck himself. Randazza’s eventually successful response brief (PDF) has to be the funniest legal filing I have ever seen. As his casework suggests, the Legal Satyricon is a profoundly irreverent (and sometimes downright nasty) look at IP and free speech issues, delivered in a smug but intelligent way. Recently he took aim at  Alan Grayson for using an anti-fraud statute to attempt to imprison the founder of an anti-Grayson website (I know. I used to like the guy too.), and totally destroyed former Representative Ted Klaudt for trying to use “common law copyright” to keep news sources from printing stories about his conviction of child rape and witness tampering.
  • Another excellent blogger is my friend and former coworker Chris Devers, who has been combining his various Internet presences into a Posterous blog which I’ve been following recently. A recent highlight was his writeup of the last day of the Zeiss Projector at the Boston Museum of Science’s planetarium. Half the fun of going to the planetarium was seeing that mutant steampunk barbell in action. I hope the new projector can live up to its predecessor.
  • And finally, while I’m as excited as the next tech-minded 20something about the new Apple tablet, I share Mr. Colin Ashe’s well-honed and succinct skepticism about its ability to singlehandedly save the publishing industry.

It’s good to be back. Here’s to a successful new year in all of our endeavors.

7 November 2009

NH Supreme Court hears online journalism case

Filed under: Berkman,deepthoughts,knowyourrights,lawsandsausages,oyez — Andy @ 11:36 am

Back in June, as an intern at the Berkman Center’s Cyberlaw Clinic, I worked with members of the Citizen Media Law Project and the Reporters Committee for Freedom of the Press in drafting an amicus curiae brief (PDF) in the case of The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc. In this case, a mortgage industry news website obtained documents from New Hampshire and Massachusetts Banking Departments, providing details the ongoing investigation of a New Hampshire mortgage company (an investigation which ended in over $700,000 in fines). Upon publishing those documents the company in question sued the website in New Hampshire state court, ordering that the documents be removed and the source of the documents be revealed. The Rockingham County Superior Court granted these requests, and the case was appealed to the New Hampshire Supreme Court.

We focused on the First Amendment issues at stake case, and there were many: the lower court’s injunction worked a prior restraint on speech, it punished the disclosure of information that did not violate New Hampshire law – and even if it had, federal precedent would prohibit applying that punishment to these facts –  and it ordered the disclosure of the identity of an anonymous source, in violation of both U.S. and New Hampshire laws and case precedents. (Our press release following our filing is here.)

Last Wednesday the New Hampshire Supreme Court heard arguments from the parties in the case. Being in DC, I could not make it up to see the argument, but reports from the hearing are coming from Poynter Online, New Hampshire Public Radio, and /.. These reports suggest a great deal of the oral argument was spent discussing whether the rights recognized as awarded to “journalists” should apply to an online website of this nature, particularly the rights which protect disclosure of sources.

I find it interesting that, from what I’ve seen, there’s no record of the court discussing the issue most often advanced in a website publication case: “this isn’t a prior restraint as the material was published before it was removed.” The respondent lead with this in their brief (PDF), but no sources note this as being in the discussion. Instead, it seems as if the reporters’ privilege against revealing anonymous sources was the main tack of the respondent’s oral argument. This is a major hurdle for the respondent, but certainly not the only hurdle: even if they were to persuade the Court that the privilege should not apply to this website, they still would have to deal with the prior restraint and unconstitutional punishment issues raised by the petitioners, and the fact that the statute under which they brought this claim does not appear to create a private right of action. The absence of these arguments from the reported discussion during arguments could suggest that Court has already made up their mind on those issues.

Naturally, when the Court rules I’ll be sure to pass along that information.

18 July 2009

Jamba Juice’s new advertising technique is despicable

(Thanks to the eminent Mr. John Hodgman for the TwitterScoop)

There’s a ripoff happening online that’s caught my attention this afternoon.

David Rees is a humorist best known for creating cutting, heady, sarcastic comics using clip art and simple speech bubbles.  Highlights of his work include My New Fighting Technique is Unstoppable, My New Filing Technique is Unstoppable, and the excellent Get Your War On, now available as a complete anthology book.

Get Your War On highlighted the mass hysteria and empty logic surrounding the US “War on Terror,” and ran from the beginning of the Afghanistan invasion through the end of the Bush presidency.  The comic prominently features two characters who are never given a name, but are sometimes referred to as “accounts payable” and “accounts receivable.”  A sample comic:


Apparently GYWO made a lasting impression on an employee or ad agency contractor over at fruit smoothie enterprise Jamba Juice, as the company featured the two characters on a recent advertisement for a “Cubicle Picnic” contest (these are stills from a flash video which runs when the website starts up):


Goes without saying, but Rees was not to happy with his anti-corporate comic being used as a blatant, “viral,” corporate shill.  On his blog he is now asking for a boycott of Jamba Juice, railing on the comic in general, noting the use of the exact same word balloons, insulting Jamba Juice drinkers, and ending with this remark:

Whoever made this ad is probably a 22 year-old “creative” at some ad agency in Tech Valley, CA. Way to think outside the box, sonny. Have fun snorting cocaine at the nightclub you go to with your friends who work at Twitter or wherever. And no, Adult Swim will NOT buy your stupid cartoon you’re developing with your housemates about four guys who work at an ad agency but are secretly lobsters.

Goddamn, I need to get Code Pink on the case about this. I’ll take this shit to the Supreme Court and live-blog my own lawsuit. Judge Sotomayor better side with me.



Were the two of Rees’ own creation this would be an open and shut copyright case.  The tricky part is, the clip art characters are in the public domain.  (At least according to Rees in his post; I’ve yet to verify that.)   Even so, copyright law does permit one to claim ownership of original creative contributions to existing public domain works – like the layout of an anthology of public domain art or the text Rees adds to the speech bubbles in GYWO.  But is a particular design of a speech bubble enough?  Should it be?  Any IP nerd will quickly tell you an “idea” alone is not protected; but while the idea of doing a comic based on a depressing, stale office environment using public domain clip art cannot be protected under US copyright, has this crossed over from being the “idea” of a GYWO-like comic to a cognizable claim of infringement?  Could you, or should you, be able to claim that while Rees can’t claim copyright infringement from use of a public domain work, he should be able to claim it when Jamba uses the same two public domain works in the same context?

I’m rarely (maybe never) one to advocate an expansion of intellectual property law, and I’m trying very hard to imagine how I would feel if Rees ripped on Jamba Juice instead of the other way around, but I feel as though the law should provide remedy for this sort of shameless ripoff.

Perhaps the best remedy is found under trademark.  Trademark law is a means of helping the public identify the origin of goods, allowing manufacturers to protect their brand identities against other market participants creating stopping confusingly similar products.  In short, trademark law is why I can’t go into my kitchen, develop a new soda, call it “Coca-Cola” (or “Coce-Kola”), and start selling it in stores. Within the field of trademark law is a term of art – trade dress – to reference protections provided over layout, packaging, and other unique characteristics of a product which, if copied, can cause confusion in the marketplace even if the copier didn’t use the name directly.  In other words, trade dress is why I can’t go into my kitchen, develop a new soda, put it in a red can with cursive white script in the same layout as a Coke can, and start selling it in stores.

Trade dress may provide a remedy here.  Perhaps Rees can claim that the layout of the figures and use of the speech bubbles are sufficient design characteristics for a trade dress claim.  As John Hodgman noted, “many will presume [Rees] made these ads and is getting paid. Not True.”  That said, there is no doubt David Rees fans would be upset if he started making ads for a company like Jamba Juice, and to the extent this leads fans to believe that the confusion is causing harm to Rees’s GYWO brand.  This also helps me distinguish this case from others where I might be okay with someone ripping on another company’s design: this is not done for commentary, parody, or other fair uses, and in doing this ripoff Rees will be falsely depicted as endorsing this activity.  If trademark can be said to further the public interest of distinguishing goods, while still providing First Amendment protections critical to a public discourse, a use like this – which confuses the origin of the comic and adds nothing meritorious to the public good – seems a ripe candidate for a trademark claim.

Regardless of whether courts find a cause of action in what Jamba Juice did, whoever came up with this add should be fired.  This is the sort of activity which gets a company on shame-worthy blogs like You Thought We Wouldn’t Notice, and causes people to distrust, boycott, or even sue a company.  I can’t find the agency responsible for this ad, but in digging around I found this YouTube video of Jamba Juice’s ad agent describing the Cubicle Picnic promotion.  Be it him or some other viral marketing lackey, this is plagiarism, and even if the law does not recognize fault with that the creative industry most certainly does.

Update: James Urbaniak, in addition to being the voice of Dr. Venture on the Venture Brothers, has taken up arms in this particular fight.  As his LJ post notes, the organization responsible for this ripoff ad is LA agency Neighbor.  From his post:

Their unintentionally hilarious website positions themselves as paragons of crunchy, earthy, green, do-gooder, one-world decency. According to their manifesto: “You get conscious, inspired, ethical, engaged, genuine, positive and purpose-driven work that grows your business and your people all the while making the world a better place.” Ad man, heal thyself.

Heal thyself indeed.

Update 2 (21 June): Thank you all for the comments, emails, and especially for the budding discourse.  This story has clearly grown beyond this humble little blog.  For much more coverage, see BoingBoing, Consumerist, Fast Company, Brand Flakes for Breakfast, Comics Alliance, and Timothy Buckwalter’s blog. I hope to do some more research into this trademark and copyright question and share what I find, but work keeps me busy during the week.  Until then, I defer to the comments below and the links above for more discussion.

Due to the increased traffic, I should probably quickly (create and) state my commenting policy: I do moderate comments on the blog, but as long as it’s pertinent to the discussion I’ll post it.  If you feel this is unfair let me know.

Also, a very warm thanks to John Hodgman and David Rees for their kind words and links.

13 July 2009

Sen. Specter’s comments at Sotomayor hearing

Filed under: Berkman,lawsandsausages,politics,thecommonlaw,theroad — Andy @ 9:03 pm

I watched the opening rounds of Judge Sotomayor’s hearing before the Senate Judiciary Committee this morning with my fellow Berkterns. Most of it was the usual Congressional grandstanding (which always reminds me of the classic Simpsons line when Kang and Kodos pose as Presidential candidates: “As a young boy I too dreamed of becoming a baseball…”), but in the middle of all of that sound and fury was an impressive, issue-based speech by Senator Specter. I’ve yet to find a good video to embed here, but in the meantime here’s the transcript from his website. Some highlights include his comments on the drop in cert.-granted cases over the years:

Most of the questions which will be asked of you in the course of these hearings will involve decided cases. I intend to ask about decided cases, but also about cases that the Supreme Court decided not
to decide. And on the rejection of cases for decisions, it’s a big problem.

The court, I would suggest, has time for more cases. Chief Justice Roberts noted, in his confirmation hearing, that the decision of more cases would be very helpful.  If you contrast the docket of the Supreme Court in 1886 with currently, in 1886 there were 1,396 cases on the docket, 451 were decided. A century later, there were only 161 signed opinions. In 2007, there were only 67 signed opinions.

I start on the cases which are not decided, although I could start in many, many areas. I could start with the Circuit splits, where one Court of Appeals in one section of the country goes one way and another Court of Appeals goes the other way. The rest of the courts don’t know which way the precedents are, and the Supreme Court decides not to decide.

But take the case of the terrorist surveillance program, which was President Bush’s secret, warrant-less wiretaps and contrast it with congressional authority exercised under Article I on the Foreign Intelligence Surveillance Act, providing the exclusive way to have wiretaps, perhaps the sharpest conflict in the history of this great country on the Article I powers of Congress and the Article II powers of the president as Commander-In-Chief.

The Federal District Court in Detroit said the terrorist surveillance program was unconstitutional. The Sixth Circuit decided two-to-one that the plaintiffs did not have standing. I thought the dissenting opinion was much stronger than the majority opinion. And standing, as we all know, is a very flexible doctrine and, candidly, at least as I see it, used frequently by the court to avoid deciding a case.

Then, the Supreme Court of the United States denied certiorari, decided not to hear the case, didn’t even decide whether the lack of standing of standing was a justifiable basis. This has led to great confusion in the law, and it’s as current as this morning’s newspapers reporting about other secret programs which, apparently, the president had in operation.

Had the Supreme Court of the United States taken up the terrorist surveillance program, the court could have ruled on whether it was appropriate for the president not to notify the chairman of the Judiciary Committee about the program. We now have a law which says all members of the Intelligence Committees are to be notified. Well, the president didn’t follow that law. Did he have the right to do so under Article II powers? Well, we don’t know.

Or within the past two weeks, the Supreme Court denied hearing a case involving claims by families of victims of 9/11 against Saudi Arabia, of Saudi Arabian Commissions and four princes in Saudi Arabia. The Congress decided what sovereign immunity was in legislation in 1976 and had exclusions for torts. But the Supreme Court denied an opportunity for those families who had suffered grievously from having their day in court.

One of the questions, when my opportunity arises, will be to ask you what would be the standards that you would employ in deciding what cases the Supreme Court would hear.

And, in a question of, shall we say, supreme relevance to some of my colleagues,  he primed some arguments on cameras in the courtroom:

With the few seconds I have left, I’d like to preview some questions on televising the court.

I don’t know why there is so much interest here today. I haven’t counted this many cameras since just Alito was sitting where you’re sitting.

You’ve had experience in the district court with television. You’re replacing Justice Souter, who said that if TV cameras were to come to the court, they’d have to roll over his dead body.

If you’re confirmed, they won’t have to roll over his dead body.

But the court decides all the cutting-edge questions of the day. The Senate is televised, the House is televised. A lot of people are fascinated by this hearing.

I’d like to see the court televised. You can guess that.

Once someone graciously posts his remarks in entirety on YouTube I’ll embed them here. In the meantime, I encourage you to visit his site and read the transcript. The thought of there being substantive issues to pepper the absurd wise-Latina-judicial-activism-Ricci-Gate-dog-and-pony-show tomorrow might just keep me tuned in.

28 May 2009

Sotomayor on Copyright Law

Filed under: followup,lawsandsausages,politics,theroad — Andy @ 11:04 am

As a followup to Monday’s post, head over to the blog Ex(c)lusive Rights to see an impressive list of all of the copyright/soft-IP decisions Judge Sotomayor did while working the Second Circuit and the S.D.N.Y. As Gizmodo puts it, Sotomayor knows stuff about computers. Many thanks attorney Shourin Sen for putting this list together (and promising to update it as more are found).

This might have been my weekend reading material, if my weekend wasn’t already so busy reuniting with my old production/promotion company to help produce one more festival. See you all when I come back.

5 May 2009

Welcome Back, Folks


After finals effectively destroyed any chance of keeping up with my feeds, I turned on my RSS reader for the first time in a couple weeks. I was met with over 4000 items. There’s no way I’ll be able to give these a full treatment (and to pile these all together makes for pretty scattered reading), but here are a few highlights:

I hope to be back to more regular schedule now that my 1L year is over and the summer has begun. I make my return to Boston tomorrow; can’t wait to see you all. And to my new DC friends: congrats and thanks on a wonderful year, and I hope to see a lot of you up here or down there soon.

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