Quickthink

This is a short rant about IP rights

IP rights are strange. They are not intuitive. For example, one doesn’t really “own” a copyright. One has the benefit of it for limited period of time. Why?

Because granting copyright protection is controversial. The law grants it for the “public good” - not for the good of the author. And what is the public good? To give just enough incentive for authors to produce more content. That is it. Grant too much and assertions of copyright license fees stifle creation and distribution of new content. See the conflict?

With this in mind, consider the current legal flap over the copyright to Sherlock Holmes stories. Cone on! Sadly for us all, the author, Sir Arthur Conan Doyle died in 1931. That was more than 80 years ago. Neither he nor his estate have nor are likely to produce any more Holmes stories. So, what good does it do the public that any of Doyle’s works are still subject to copyright? And yet, Doyle’s estate still wants fees for use of the character.

Outrageous? You make the call.

This is not a tribute to Ronald Dworkin, the famous legal philosopher who just died. It is not, because to be honest, I am not a huge fan of Dworkin’s work. It seemed to me that Dworkin was fumbling around a lot trying to recover from the jolt that legal realism dealt to legal theory. And he never really got beyond that. But, ok, who has? Certainly not the clownish “originalists” (Scalia et al) who would happily retain the old Dickensian characterization that “… the law is a ass”.

But I enjoyed this comment that Cass Sunstein made about Dworkin

… I learned, as did everyone who encountered him, that he had one of the finest and most probing minds on the planet, and that if you were lucky enough to lose an argument to him (winning was out of the question), your own understanding would be immeasurably improved. He was not only a giant but also a good and gracious man.

That is a high standard to judge any man - to say that one would be lucky to lose an argument to him.

Oh … what did Dickens have in mind? Here is the context from the phrase finder

Dickens … put (the phrase) into print in Oliver Twist, 1838. When Mr. Bumble, the unhappy spouse of a domineering wife, is told in court that “…the law supposes that your wife acts under your direction”, replies:

“If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is an ass - an idiot”.

In this post, I use the grammatically incorrect “a ass” following the phrasing of an old Hollywood adaptation of the novel. While grammatically incorrect and a derogation from the original text, I think it heightens the intended effect that a simpleton like Bumble could utter such a profound idea

For additional pleasure, you might view David Osborne’s video presentation on the idea of law as gravitas.

Yes, this is a rant about the current interpretations of the 2d Amendment to the US Constitution

Gun control is a volatile political issue in the US these days. No wonder, given the steady stream of gun related deaths. Most agree that restricting access to guns by persons who would use them unlawfully would be a good idea. So why is this a problem?

Well, those opposed to such restrictions point to the second amendment to the US Constitution. It says

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed

Those resisting gun control, point to the phrase “… the right of the people to keep and bear arms shall not be infringed.” No limits, right? Well, law rarely if ever endorses an unlimited right. And in this case, the first part of the sentence provides that limit and the governing rationale for the right to keep and bear arms in the first place - because “a well regulated militia is necessary to the security of a free state.”

BTW, in D.C. v. Heller, Justice Scalia set forth the view that while the initial part of the text sets forth the “purpose” of the right, stating the purpose does not limit the right.

… apart from (its) clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.

In other words, the right (in the operative clause) exists to fit the purpose and then beyond it. Put another way, the law need make no sense whatsoever in our time.

But let’s set that idea aside for a moment and ask a more basic question. Is militia really necessary for state defense? These days, most would say “no”. The security of the state is the job of the armed forces. So there is a problem here and it is a rather obvious one. Why did the founders think militia had such an important role to play? There is a very simple reason. At that time, the US had no standing army. The continental army was disbanded immediately after the revolution and no plans to create a new national defense force were politically feasible. Militia played that role - especially important in the southern states where fear of slave insurrection was, shall we say … ongoing. So, it was logical back then that the constitution would protect the underlying principle that made militia possible - armed citizenry. Without armed citizenry, the nation would have been defenseless. This quote is instructive

Any subsequent reinterpretations of (the 2d amendment) must start with the fact that our leaders, fresh from their experiences in the Revolutionary War, relied on the militia as the centerpiece of our national military establishment. The concept of the militia and the right to bear arms are inextricably joined.

But things changed. For example, in the war of 1812, militia performed poorly against English regulars and as a result, US dreams of invading and conquering Canada were repeatedly thwarted. There was a realization that militia could not hold the field against professional soldiers. Eventually, this led to reliance on professionally trained soldiers rather than volunteer militia and a standing army. Think for a second. When the southern states seceded, did Lincoln rely on militia? Did we rely on militia in the first war? In the second? In Korea? In Vietnam? In Iraq? Do we rely on militia in the so called “war against terrorism”? Militia played and plays no significant role in combating the threats to the security of the free state in these conflicts.

So, going back to the 2d amendment, if militia were no longer central to the national defense in the 19th century and is not now, how much importance should we give to its functional requisite - the right to bear arms - in the 21st century?

I think the most reasonable answer is “not much”, especially in light of the real world effects of unrestricted sale and distribution of these weapons. Or … would you prefer more real deaths to support a symbolic function?

So, if we agree, what would one say to Justice Scalia, et al? Simply this - their choice of interpretative method is their choice, and nothing more. It is not the sole method that legal theory would allow. To the contrary, interpretation of legal text in light of the stated purposes to be achieved also is legitimate and in this case appropriate. When the stated purpose is less relevant than it was when the text was created, there is a reasonable basis to restrict the operative effect of the subsidiary clause. Otherwise, the tail wags the dog. Got it?

His name was Georgy Gongadze and he was a journalist in the Ukraine back in the 1990’s. As it turns out, that was a very high risk profession, especially if your focus was to uncover high level corruption. Here is a photo of the young Georgy from Kiev Ukraine News Blog

In 2000, the burned and headless body of young Georgy was found in a shallow grave. Nasty stuff. The police and prosecutors vowed immediately to get to the bottom of it. And very soon they were on the trail of mafia figures. Then oddly, a recording surfaced, purportedly from a bodyguard of then President Kuchma. It sounded like Kuchma was ordering Gongadze to be killed. Prosecution theories that unnamed mafia figures were to blame started to sound a bit lame. Prosecutors had to dig deeper. And they were about to question the Interior Minister himself. They found him at home in his office … dead. Oops. It was ruled a suicide, though he had two bullets in the head. Go figure.

What to make of all this now? Well, it was a long time ago. But suddenly we may be getting closer to the truth. There was a recent trial where

Gen. Oleksei Pukach, who once headed a surveillance department for Ukraine’s Interior Ministry, testified that he had not intended to kill Mr. Gongadze, but strangled him with a belt accidentally in the course of an interrogation.

Reported by NYT.

Ooops. BTW, in case you forgot, Pukach confessed to killing Gongagdze back in 2009.  The question was why he did it.

Now we know that it was during allegedly an interrogation. But about what? Well, Pukach claims he wanted a confession that Gongadze was engaged in espionage. Hmm … good thinking. You always have to be on the alert for spies. And perhaps Pukach just got a bit carried away in the passion of the moment. But hmmm … that doesn’t explain the beheading. Nor does it explain the barbeque of the dead body. And isn’t it strange that Pukach just happened to have a shovel and a canister of gasoline handy? Ah well, details.

And I just can’t help it. I have another question. Why was such a high level official out and about in the countryside doing such a menial errand? I mean were Ukrainian generals routinely roaming around the countryside knocking off routine interrogations by strangling folks with belts? Well, Pukach said he was just following orders. Ok. Now we get to some rather interesting questions. Who ordered generals like Pukach around back then? Who issued this order? Exactly what was the order?

After more than a decade, these questions are still under review. Tant pis. But I am thankful for one thing. Georgy is still with us. We still follow his story. That is important. Or at least it seems so to me.

Torrent Freak reports that the MPAA thinks the megaupload prosecution has been a massive success. I guess they have to say that given the political capital that they expended in getting this far with it. BTW (a follow up) Tech Dirt blasts the MPAA for its comments.

At the same time, reports from New Zealand don’t sound very positive. To the contrary, the New Zealand government most likely regrets that it cooperated so freely with the US — and is now being taken to task for stepping over the line to nail Mr. Dotcom. Dotcom now has the green light to seek damages for illegal spying. This case is getting interestinger and interestinger.

A few months ago, a US District Court judge in New York refused to grant a preliminary injunction to stop a company called Aero from retransmitting copyrighted TV content. That decision is now on appeal, with oral argument just concluded. The Chicago Trib reports.

So what’s the big deal? Not the technical and legal details (as these are arcane). But a decision in favor of Aero by the 2d circuit would send an interesting signal. What signal? That the value of blanket restrictions on the distribution of content to protect copyright may not be as great as IP rights holders have argued.

The timeless film, Casablanca offers us Claude Rains brilliantly playing Captain Louis Renault, a corrupt French police officer trying to survive in turbulent times. There are at least two classic scenes. In the first, he follows orders from his German masters to close down Rick’s cafe (if you haven’t seen the film, Rick is played by Humphrey Bogart).

In the second, we find Rains at the airport where Humphrey Bogart has just shot and killed a German officer. He has to make a split decision on how to handle the situation. Does he do his duty and arrest Rick, or does he do the right thing?

My point? Well, corruption usually does not occur in a vacuum. It is part of a larger context. And it can be systemic — the basis for power relations. It is common knowledge that in Russia, the powers that be have well rewarded their friends. It is also well known that the public is getting fed up with the excesses. Time for a crackdown on “corruption”? Of course! NYT reports.

But Russia is not the only place where we find complex questions about who has influence and why. Consider what just happened in Washington on Friday. As you might have heard, the republican party took a beating at the elections. One need not be a political genius to realize that the republicans need to find policy issues that attract new voter groups. As I (and others) have argued, one sector that is ripe for this is the tech sector. All that would be needed is a call for reform of IP laws - especially copyright. And it appears that at least some republicans in Washington see this opportunity as well. They went so far as to get a policy paper calling for copyright reform published on the Republican National Committee web page. And then something happened. Tech Dirt has the story. Apparently that was a “no no”.

Email is an odd channel of communication. It is a digital letter. But unlike old fashioned posted letters, one creates emails quickly and expects that they will be consumed quickly. They are not intended to stand alone as evidence of deep reflection. So I shudder at the thought that my grandchildren might purchase the collected emails of Justin Beiber the way I might purchase the letters of James Joyce.

But emails do constitute evidence of less than deep reflection. And as such, they evidence the nature of the relationships and exchanges that constitute our public and private lives. Not just any type of evidence. But unguarded, because we are not being careful. We think the microphone is turned off. That can lead to serious consequences. And most recently, General Patreaus, Ms Broadwell et al have discovered this to their misfortune.

It should be no surprise then that functionaries of investigative agencies (like the FBI) are well aware of the value of email as evidence and as needed, find ways to obtain them. But should we accept this as normal? We might recall that Mr. Hoover amassed considerable power because of his collection of evidence pertaining to the foibles of American political leaders. Most now say that Mr. Hoover abused the power of his office as director of the FBI. But as Roger Cohen and others point out, is the the Patreaus affair telling us something about how pervasive surveillance has become once more? And if we know the risks stemming from that, don’t we know what to do?

BTW, my thanks to Rachel Maddow who reminded me of the parallel to Mr. Hoover. I recommend her show — that you can watch online — if you crave the best US political analysis that media has to offer.  Sure it is partisan. But it is fact based (using a phrase from Dan Rather who recently appeared on her show).

FOLLOW -  To get the “flavor” of Mr. Hoover’s type of power, one need only go back to a famous comment made by LBJ answering why he didn’t fire Hoover. He said (paraphrasing) “It’s probably better to have him inside the tent pissing out than outside the tent pissing in”.  Nothing more need be said. Yech!

That point, that things you can’t see can hurt you, was one of the basic arguments of Adam Smith. He argued that when government tries to protect local industry (mercantilism), it makes everyone worse off. You can’t see this, but that is the effect over time. And that is why we now have swarms of economists telling us about stuff that we cannot see. Here is one example.

But we are smarter now right? Well, perhaps not. If you look at how Washington works, you notice pretty quickly that business interests are very powerful. They use their influence to protect their market positions in many ways. And one of the most powerful? Hollywood. And their tool of choice? Expanding IP rights, like copyright.

Consider this quote from Prof. Glyn Lunny of Tulane, via TechDirt

Because copyright benefits a concentrated and well-organized interest group at the expense of a dispersed group, establishing an optimal copyright regime is simply not something Congress has done or will do well. We should therefore limit Congress’s power to act on this issue.

There are a few powerful ideas in there. First is the recognition of what expanding copyright protection is all about. Second is the recognition of the limits of the effectiveness of Congress. We the people need a better tool that protects us against something that we can’t see.

Jeff Toobin has a new book out about the US Supreme Court, and Michiko Kakutani reviews it for NYT today. Several ideas in the review jumped out at me.

First is a thought about President Obama

In Mr. Toobin’s view, Mr. Obama “did not believe the courts were the principal vehicle for social and political change,” regarding “elections, rather than lawsuits,” as his “battlefield of choice,” and this “diffidence about the role of the courts” would shape both his own career and his presidency.

Indeed, for all their talk about judicial restraint, it is the so called conservatives who have the most aggressive judicial strategy on issues from expansion of executive power to abortion to gun control. So what? Well, the democrats have for quite a while have been talking about the importance of the composition of the court - but is this just a defensive maneuver (to defend Roe v. Wade)? I don’t think that this is good strategy.

Second is the role of the court in setting limits on regulating interstate commerce. The conventional wisdom was that federal power here should be the most broad because of the need to knit together and make coherent the national market. Hmm … I still believe that. But will the court use Justice Roberts decision in the Affordable Health Care decision to start eroding that power?

Interesting.