Law

Orin Kerr has “partly detached himself”:http://www.volokh.com/archives/archive_2006_03_12-2006_03_18.shtml#1141972931 from the “Volokh Conspiracy”:http://www.volokh.com/ and now has a “new blog of his own”:http://orinkerr.com/, which will focus mostly on legal analysis “with an emphasis on current legal debates and a broader perspective on the legal academy and the legal profession.” The opening in the ideological “vacancy chain”:http://en.wikipedia.org/wiki/Internal_labor_Markets_/_Vacancy_Chains created by this move will, I think, come to be occupied by Randy Barnett.

When you are a crazy person, as I am, you may find yourself awake early in the morning, having gotten up to nurse your baby and now being unable to fall asleep, as the room slowly whitens with dawn–you may find yourself, I say, thinking about gun control. That’s right, gun control.

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The whole business with the Danish cartoons has now reached new levels of insanity with Christians and their churches being attacked in Nigeria and Pakistan. That the Danish newspaper had the right to publish its deplorable cartoons ought not to be in question. But it does not help the case for freedom of speech if Muslims can truthfully say that there is a double standard and that the sensibilities of Christians are regarded as a valid legal reason for restraining freedom of expression whereas theirs are not. Mark Kermode had “a piece in the Observer a week or so ago”:http://observer.guardian.co.uk/review/story/0,,1707715,00.html concerning the film “Visions of Ecstasy”:http://www.imdb.com/title/tt0098604/ which the British Board of Film Classification refused to grant a certificate to on the grounds that a successful prosecution under Britain’s blasphemy laws was likely to succeed. The film maker took his case to the European Court of Human Rights, claiming that that the refusal to grant classification was a breach of his rights under Article 10 of the Convention. He lost. In line with a previous judgement, the Court

bq. accepted that respect for the religious feelings of believers can move a State legitimately to restrict the publication of provocative portrayals of objects of religious veneration.

It is therefore simply not true to say that in Europe freedom of expression trumps the sensibilities of believers. What is true is that some believers, of some denominations, get legal protection from being offended, and others don’t. Not a satisfactory situation.

The full judgement of the ECHR (complete with concurring and dissenting opinions) is “here”:http://www.worldlii.org/eu/cases/ECHR/1996/60.html .

“Alan Schussman”:http://www.schussman.com/article/1256/letters-to-the-editor-passing-in-the-night reads the letters to our school newspaper, the “Daily Wildcat”:http://wildcat.arizona.edu/, so I don’t have to. The context is an effort by Republican state legislators to “require that a U.S. flag be displayed”:http://www.tucsoncitizen.com/breakingnews/021506AZ_Schools_Flags in every public school and university classroom. Tucson Democrat Ted Downing responded that “This is not the proper way to bestow patriotism. If we want we should spend more on teaching American history.” Today in the “letters to the editor”:http://media.wildcat.arizona.edu/media/paper997/news/2006/02/16/Opinions/Mailbag-1616232.shtml?sourcedomain=wildcat.arizona.edu&MIIHost=media.collegepublisher.com a number of University of Arizona students provide evidence that he might be right. Here’s Rob Monteleone (a senior), for example:

It doesn’t surprise me that someone who represents affirmative action wants to twist and distort the Constitution to suit the needs of poor, always-the-victim minorities. The Constitution was written so that all men would be treated equally. Whites, blacks and anyone else in this country … even the ones who don’t belong here.

As Alan remarks, “I’d suggest Amendments 13, 17, 19, and 24 as starting points for Ted Downing’s civics curriculum.”

I see via Larry Solum (an indirect route if ever there was one) that Alan Rubel has posted his paper “Privacy and the USA Patriot Act: Rights, the Value of Rights, and Autonomy” (forthcoming in Law and Philosophy) on SSRN. Here is the abstract:

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Via “Orin Kerr”:http://www.volokh.com/archives/archive_2006_01_29-2006_02_04.shtml#1138553669, this Newsweek “story”:http://www.msnbc.msn.com/id/11079547/site/newsweek/ about Jack Goldsmith and his efforts to oppose the Bush administration’s claims to sweeping powers to authorize torture and to wiretap American citizens. It’s become more and more clear over the last few months that Goldsmith played a very honourable role behind the scenes – while he’s certainly a conservative, he appears to be one who’s prepared to stick to his principles when it’s politically difficult. When Goldsmith was appointed to Harvard Law School, some of his liberal colleagues “protested”:http://www.msnbc.msn.com/id/11079547/site/newsweek/, arguing that he might have been complicit in authorizing torture (others, more reasonably, were concerned about his theories of international law). At this stage, I believe that the former owe him a fulsome public apology.

I watched Peter Ackroyd’s BBC programme on the “Romantic poets”:http://www.bbc.co.uk/arts/romantics/ yesterday and was rather taken with the account of John Clare. So I was googling around trying to find out more and, via the “Wikipedia entry”:http://en.wikipedia.org/wiki/John_Clare , happened upon the extraordinary fact that much of Clare’s work is subject to a copyright dispute. Since Clare died in 1864 I wondered how this could be so. There’s a page of links on the whole dispute at the “John Clare page”, but the in-a-nutshell version is in “a Guardian article by John Goodridge”:http://www.guardian.co.uk/Archive/Article/0,4273,4042964,00.html :

bq. Under the 1842 Copyright Act which was in force at Clare’s death, in the case of published works copyright endured for 42 years after publication or seven years after the author’s death, whichever was later. Thus three of Clare’s published volumes came out of copyright in 1871, and the fourth in 1877. For unpublished works, however, copyright was a very different matter. Under common law, an author, or after his death his personal representative, retained perpetual control over his work as long as it remained unpublished. This is particularly important in Clare’s case, since his four published volumes contained only about 10% of his total output – some 300 poems out of more than 3,000 he wrote in his lifetime. This common law “perpetual” loophole for unpublished material was written into the Copyright Acts of 1911 and 1956, and finally replaced in the 1988 Act with a finite, 50-year term of protection (made potentially extendable by a further 25 years in a 1996 Act). In Clare’s case, this could extend the copyright claim well into the middle of this century ….

There’s more, including the tenuous chain by which the copyright was passed on and the more recent purchase of the rights for £1 by a US academic.

While cooking dinner tonight I was doing my usual intuitive translation between celsius and fahrenheit (i.e., roughly correct and I can’t be bothered to go look at the computer), and I thought, “I wonder if the US is ever going to go metric?” When I was a kid I assumed it was just a matter of time, since everyone had to learn about it in school. Now, though… Still, it would seem really stupid if in the year 2642 people were saying things like “that asteroid is nearly 1,000 miles away”, and then the robot would be like “I think you mean 1,609 kilometers, sir”, and then the captain would get all mad and start muttering about Euro-weenie AI’s. Then again, that whole French revolutionary 100 minute hour never really caught on (though the watches are amazing(scroll down)). Will the US never capitulate to the one-world-government types pushing the metric system? We eventually submitted to the flouridation of water, after all, and that was a threat to our bodily fluids. What would the Englishmen of the 19th century novels, caught up in the mysterious minutiae of l, s, d, and guineas (none of which I have ever bothered to fully understand), make of the looming euro?

No, not another post about how legal scholars are into it. Via Adam Kotsko, I learn that anonymous blogging is a lot less legal than you probably thought.

The fine print of the Waste of The Supreme Court’s Valuable Time Waiting To Happen Act Violence Against Women and Department of Justice Reauthorization Act:

“Whoever…utilizes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet… without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person…who receives the communications…shall be fined under title 18 or imprisoned not more than two years, or both.”

Given that for all x, such that x is a political opinion, there exists some y, such that y is a person who will be annoyed by x, hell I’d say it’s no longer legal even for the NY Times to post unsigned editorials on their website. I guess you can invoke some sort of doctrine of double effect here. But you get into a position in which it is legal, say, to intend to damage someone’s political career by criticizing them; but not legal to intend to annoy that person? Am I missing something here?

UPDATE: Comments inform me the Volokhs are already debating this. Sorry to have missed that. (I should read more blogs.) Kerr says it’s just a kerfuffle. Eugene V. says maybe it’s really a problem.

Over at Legal Theory Blog, Larry Solum has “an interesting post on the difference that blogging, and the internet more generally, has made to legal scholarship”:http://lsolum.blogspot.com/archives/2006_01_01_lsolum_archive.html#113683990156732487 . Key points include the speed of dissemination, the bypassing of the gatekeepers that have traditionally mediated between legal scholars and the wider world, and the globalization of legal debate. Larry also has a few words about blogging and how it might affect your career as an academic lawyer (including some cautionary words for the untenured). Go take a look.

A few years ago, way back in the days before Crooked Timber, I wrote a post about “Princeton’s old library-borrowing cards”:http://www.kieranhealy.org/blog/archives/2002/11/26/the-network-of-ideas/. A snippet:

When I was a grad student at Princeton, someone told me that (just like most libraries before computers) the books in Firestone library used to have a pocket inside the cover where the book’s borrowing record was kept on a card. When someone wanted the book from the library, the card would be removed and stamped with the date. Faculty and students then stamped their own name on the card or (either earlier, or instead) simply signed the card when they borrowed the book.

The computer catalog and University ID cards replaced this system. Books now have barcodes and the computer system holds a record of everyone’s borrowing. But Firestone has a huge number of volumes, so the library staff couldn’t simply stick the new barcodes in every one. Instead, they did it on demand. If an old book was borrowed under the new system for the first time, a barcode sticker would be affixed to its inside cover. The old card was thrown away.

Very occasionally, then, one would come across a book or journal that had been acquired by the library under the old system, had been borrowed a few times, but then lost popularity and just sat in the stacks. Inside the back pouch would be the old library card, with its list of dates, stamps and signatures on it.

The card shown here has a signature from “John Rawls”:http://en.wikipedia.org/wiki/John_Rawls, from March 21st 1950. Beneath him is “Jacob Viner”:http://cepa.newschool.edu/~het/profiles/viner.htm, the economist. And there also is “Gregory Vlastos”:http://en.wikipedia.org/wiki/Gregory_Vlastos, the ancient philosopher and ethicist. As it happens, this evening we’re having a philosopher stay with us for a night or two — one who collects and sells antiquarian books. This topic came up over dinner, and I mentioned my tiny card collection. The philosopher expressed an interest, so I fished them out from a box in the garage, where they’ve been (inside another box) unlooked at for several years. I only have four cards — perhaps I should have worked harder to pilfer Princeton’s treasure trove — but there on one of them (The Philosophical Quarterly v.6, 1956, 6000.7163), quite unexpectedly, just below the signature of “Walter Kaufmann”:http://en.wikipedia.org/wiki/Walter_Kaufmann and just above the stamp of “Gilbert Meilaender”:http://www.bioethics.gov/about/meilaender.html is a name that’s been in the news just today: S. A. Alito, ’72. How odd.

Mark Schmitt “provides some historical context”:http://markschmitt.typepad.com/decembrist/2006/01/our_long_nation.html for the current wiretapping scandal, and reminds us of the main practical reasons why allowing the President to circumvent the law is a bad idea:

Roughly speaking, there have been four great showdowns over abuse of executive power in modern U.S. history. … These episodes have certain themes in common. Yes, one of them is that they were all hatched in the first term of Republican presidencies and revealed only after reelection, but that’s not the answer I’m looking for. … First, all of them produced a backlash. … The lesson seems clear: In a constititutional system, those who want executive power to be protected and respected, should be especially wary of presidents who take it too far. … Second, all of them involved creating a zone of extreme secrecy in which decisions, and even the processes leading to those decisions, were kept secret not just from Congress and the Courts, but _within the executive branch itself_. … Third, in these zones of extreme secrecy, in which nothing ever has to be justified to anyone outside of the closed circle, all sorts of insanity flourishes. Personal obsessions take hold and are pursued unchecked. Ideas that would be too embarassing to explain to anyone seem to make sense and are carried out. This was true in every example, from the nutball Castro assassination schemes hatched in the CIA to the idea of firebombing the Brookings Institution in the Nixon White House, to the bizarre excesses of Iran-Contra, such as delivering a cake shaped like a key and a Bible signed by Reagan to the Iranian clerics. … Given what we know about these previous episodes in which the executive branch created zones of extreme secrecy, I think it’s quite likely that we will soon learn that the NSA domestic surveillance program involved much more than just tracking people who received calls from known _al Qaeda_ suspects, something that I certainly wouldn’t object to. I don’t know what it will be — some have speculated that it involved monitoring journalists — but whatever it is, it was something that couldn’t be justified even within the administration.

This is a good counterpoint to the detailed legal readings provided by people like Orin Kerr: the fine-grain of the legal issues is very important, of course, but the political sociology of executive/judicial relations is a much broader topic than the proper reading of particular statutes. Mark reminds us that we have historical cases to remind us what tends to happen to the institutions of American government when its officials want to throw the cloak of secrecy over substantial parts of it — not just to keep things from the public but, as Mark says, to hide things from other parts of the executive.

Bob Stein at if:book has a legal/ethical/tactical question about CC and non-commercial use:

there’s a site [but I’m not going to link to the pesky bugger – JH] that reposts every entry on if:book. they do the same for several other sites, presumably as a way to generate traffic to their site and ultimately to gather clicks on their google supplied ads. if:book entries are posted with a creative commons license which allows reuse with proper attribution but forbids commercial use. surferdiary’s use seems to be thoroughly commercial. some of my colleagues think we should go after them as a way of defending the creative commons concept. would love to know what people think?

If you want to view the splog in question, there’s a link in Bob’s post. (Click here for a wikipedia definition of ‘splog’.) It seems clear splog use cannot possibly be non-commercial. As to whether the if:book folks should care, one commenter writes: “Whether you want to go after this splogger is your choice, but in general I think bloggers should welcome addition exposure and treat it like an advertising opportunity. I don’t think splogs are a good thing, but RSS makes all kinds of syndication possible – legitimate or otherwise…”

I’m curious about a different question: how exactly does this CC license define the ‘commercial purposes’ bit of ‘you may not use this work for commercial purposes’? For example, good old J&B Have A Blog has a sidebar of Amazon links; I do the Amazon associates thing. I make a couple bucks. What makes our site different than a splog is, among other things, that small sums we earn are definitely not the point. But I’m not sure how that could be legally codified. ‘Non-commercial’ doesn’t seem the best way to capture ‘incidentally commercial’, or ‘not PURELY commerical’. No doubt the wise prof. Lessig has considered this, but I don’t know what the answer is. Do you?

In case it isn’t clear what I am asking, I think it’s this: the point of a CC license is to allow people to republish content with certainty that they are legally permitted to do so. What allows a blogger or web-publisher with incidental advertising to KNOW that they are a non-commercial user?

UPDATE: I actually have popped the hood on the license and looked inside. But I’m not sure I understand what the legal thing that ‘not for commercial purposes’ means really MEANS, in practical terms:

You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works.

Amazon associates and googleads provide monetary compensation. On the other hand, there is that ‘primarily intended’ clause. But that’s vague. The point of a license is to give users confidence they are in the clear. Perhaps there need to be test cases, and just haven’t been any yet?

Actually, the problem may be ambiguity: ‘…in any manner that is primarily intended.’ Does that mean the manner in which I make my blog as a whole? Or the manner in which I make an individual link with an embedded Amazon associates ID? Makes a bit of a difference.

John “Hannibal” Stokes at “Ars Technica”:http://arstechnica.com has some “interesting speculation”:http://arstechnica.com/news.ars/post/20051220-5808.html/ on what the new technology behind the NSA “wiretap abuse”:http://news.com.com/Bush+lets+U.S.+spy+on+callers+without+courts/2100-1028_3-5998178.html?tag=st.num scandal might be. Because he knows a lot about computers, he’s also in a position to explain to the likes of “Richard Posner”:https://crookedtimber.org/2005/12/21/posner-forgets-himself/ one of the (several) things that’s wrong with “computer-automated mass surveillance:”:http://arstechnica.com/news.ars/post/20051220-5813.htm

Just imagine, for a moment, that 0.1% of all the calls that go through this system score hits. Now let’s suppose the system processes 2 million calls a day. That’s still 2,000 calls a day that the feds will want to eavesdrop on—a very high number, and still much higher than any courts could possibly oversee. Furthermore, only a miniscule fraction of the overall total of 2 million calls per day on only a few days of each month will contain any information of genuine interest to the feds…

… Here’s where the real problem with this scheme lies: the odds that a particular terrorist’s phone call will rate enough hits to sound an alarm are not primarily dependent on factors that we have control over, like the amount of processing power and brain power that we throw at the task, but on factors that we have no control over, like how good that terrorist is at hiding the content of his communication from the feds. …

As the TSA, with its strip-searching of people’s elderly grandparents, “abundantly proves”:http://news.com.com/Theres+no+getting+off+that+no-fly+list/2100-7350_3-5996897.html every holiday season, blunt instruments and scorched earth tactics are of dubious value in catching genuine bad actors. … All you need to beat such surveillance tools is patience and know-how. This is true for face recognition, it’s true for biometrics, it’s true for RFID, and it’s true for every other high-volume automated technique for catching bad guys. …

Targeted human intelligence has always been and will always be the best way to sort the sharks from the guppies … Government money invested in much less intrusive and much less defense contractor-friendly programs like training more Arabists and developing more “human assets” in the field will be orders of magnitude more effective than mass surveillance could ever be. … any engineer or computer scientist worth his or her salt will tell you that an intelligent, targeted, low-tech approach beats a brute-force high-tech approach every time.

There is no high-tech substitute for human intelligence gathering. … In the end, brute force security techniques are not only corrosive to democratic values but they’re also bad for national security. They waste massive resources that could be spent more effectively elsewhere, and they give governments and countries a false sense of security that a savvy enemy can exploit to devastating effect.

In short: don’t be seduced by technology. Computers are extremely powerful tools, but this isn’t the movies. Think of the last time you had to deal with the confluence of state bureaucracy and computer-based record-keeping — at the DMV, say, or at tax time, or at the local University’s Registrar’s office. Did it strike you as a ruthlessly efficient, accurate, and purpose-driven system?